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Full text of "Democracy in America"

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DEMOCRACY 



IN 



AMERICA. 



*' The very Deity itself both keepeth and requireth for ever this to be kept 
as a law, that wheresoever there is a coagmentation of many, the lowest be knit 
unto the highest by that which, being interjacent, may cause each to cleave to 
the other, and so all to continue one. This order of things in public societies 
is the work of policy, and the proper instrument thereof in every degree 
is Power ; Power being that ability which we have of ourselves, or receive 
from others for performance of any action." — Hooker. 



DEMOCRACY IN AMERICA. 



y 



BY 



ALEXIS DE TOCQUEVILLE, 

AVOCAT A LA COUR ROYALE DE PARIS, 
ETC., ETC. 



, TRANSLATED BY 



HENRY REEVE, Esq, 



IN TWO VOLUMES. 
VOL. I. 




LONDON: 

SAUNDERS AND OTLEY, CONDUIT STREET, 
s 1835. 



^ 






TRANSLATOR'S PREFACE, 



In presenting the translation of this work 
to the pubUc, preceded by an Introduction in 
which the author calls the attention of the 
reader to the present social state of France, 
I may perhaps be allowed to say a few words 
on the inferences which are to be drawn from 
the democratic institutions of America rela- 
tive to our own political condition. We live 
at a time when so many of the maxims of 
government are worn out, that in casting our 
eyes upon the aphorisms of the great states- 
men of Europe, we are astonished to find that 
the authority they attempted to defend is 
vanished, and the principles by which they 
defended it are no more. The book of ' The 



VI 

Prince' is closed for ever as a State manual ; 
and the book of ' The People' — a book of 
perhaps darker sophistries and more pressing 
tyranny — is as yet unw^ritten. Nevertheless, 
the events of every day ought to impress 
upon our minds the necessity of studying 
that element which threatens us ; and for a 
generation w^hich is manifestly called upon to 
witness the solemn and terrible changes of 
the constitution of the empires of the earth, 
the deadliest sinjs^thou^htlessness^ th^^ 
noxious food is prejudice, and the most fatal 
disease is party-spirit. The relations between 
men and power have been so indifferently 
understood ever since the beginning of the 
world, that we have found out no remedy for 
evil but evil, no safety from injury but injury, 
no protection from attack but attack; and 
in all the wild experiments which a relaxed 
social condition has undergone, we have only 
had fresh confirmation of a truth enounced 
by Lord Bacon, namely, that the logical part 
of men's minds is often good, but the mathe- 



vil 

Kiatical is nothing worth ; that is, they can 
judge well of the attaining any end, but can- 
not judge of the value of the end itself. If 
England has hitherto maintained a sober and 
becoming position in the midst of greater re- 
volutions than the world has witnessed since 
the Christian sera, not the less does it behove 
her to meditate upon the lessons of her allies 
and her descendants. What her increasing 
intelligence might suggest, her increasing 
e ' her increasing population, her burdens, 
her crime, and her perils enforce : the demo- 
cratic element must be met, and to be met it 
must be known, before the unhallow^ed rites 
of destruction have begun; before recourse 
has been had to the probabilities of chance, in 
ignorance of the probabilities of cause ; be- 
fore the vertigo of conquest has seized the 
lower orders, or the palsy of dejection fallen 
upon the aristocracy. It is presumed that 
the lesson will not be the less worthy of our 
attention because it is given us by a writer 
whose national experience and whose stand- 



vin 

ard of comparison is more democratic than 
anything which we are acquainted with in 
England. Although the reasonableness of 
democracy is shown by the American States, 
where the activity of a trading population is 
dignified by the exercise of many civic virtues, 
and where the task of the legislator was not 
to change or to repair, but to organize and 
create, the perilous erection of a central power, 
such as now obtains in France, may check the 
confidence with which the hand of the many 
is raised against the errors of the few, and 
we may hesitate before we displace the time- 
honoured dispensers of social benefits, to 
make way for the more compact and less 
flexible novelties of the time. Those thinkers 
who are wont in politics to substitute prin- 
ciples of general utility for those of local in- 
terests, are like builders who should in all 
cases rely on the principle of gravity, to the 
exclusion of the law^ of cohesion. The gift of 
self-respect, which is the parent of the inward 
dignity of the citizen, is not derived from the 



I 



IX 

debasing and democratic turbulence of party- 
spirit, affecting to compass the ends of the \ 
State to which he belongs, but from the quiet | 
exercise of functions nearer home. 

The translator of these pages had at one 
time some thoughts of curtailing the chapters 
in which the author describes the system of 
local administration in America, as somewhat 
redundant to the English reader. He has how- 
evei' retained them entire, from a belief that 
the time is fast approaching when it will not 
be less necessary to djefend the local institu- 
ti ons whi ch haye subsis ted forjoearly a thou- 
s.ai3^d^yjêjaxS-in^QU^ country^jthan it is to 

advocate their advantages as the most pro- 
bable remedy of the ills of France. Another 
reason — a purely historical one — led him to 
adopt this course. The English reader will 
probably be struck with the revival in the 
United States of the more ancient parts of 
our Constitution, whilst the Feudal or Nor- 
man element is totally excluded, except in a 
few cases which may be quoted as anomalies. 



Blackstone affirms (and the great authority 
of Selden corroborates the fact,) that the par- 
tible quaUty of lands by the custom of gavel- 
kind is undoubtedly of British origin, and 
obtained universally before the sera of the 
Norman Conquest. The constitution of ge- 
neral public assemblies ; the election of their 
magistrates by the people, their sheriffs, their 
coroners, their port-reeves, and even their 
tything-men ; the dispensation of justice in 
the county-courts principally, except in cases 
in which the supreme authority of the Crown 
was called upon to interfere, are laws of 
Saxon parentage. These principles are the 
very basis of the American Constitution ; and 
if the settlers of New England discarded the 
feudal rights, the royal justiciars, and the 
claims of primogeniture, when they relin- 
quished the feelings, the traditions, and the 
character of English subjects, it is not with- 
out pride, mingled with admiration, that a 
Briton points to the common source of our 
liberties, and to that Saxon foundation of our 



XI 



national existence which we couple with the 
name of Alfred, and from which many of the 
institutions of the American States derive 
their being. 

I cannot conclude without expressing a 
hope that this translation may tend to spread 
in England some of those sound and compre- 
hensive views of the nature and tendency of 
the democratic element which its author has 
put forth in France ; nor without expressing 
my very warm thanks to M. de Tocqueville 
for the kindness with which he has assisted 
me in the difficulties which presented them- 
selves in preparing this book for the public 
eye. Whatever may be the success of the fol- 
lowing pages, I shall always remember with 
pleasure that I was encouraged in my task 
by the high esteem and sincere regard which 
I entertain for the author. 

Circumstances have rendered the separate 
publication of the first volume advisable, and 
this course was the more readily adopted 
as the first volume may be said to contain 



Xll 

the whole of the analytical part of the work ; 
and the second (which wdll follow in the 
course of a few weeks,) offers more general 
considerations upon the character, the vices, 
the motives, and the future destiny of the 
democratic people, the retiring Indians, and 
the wretched slaves of the United States of 
America. 

H. R. 

Hampstead, 9th June, 1835. 



INTRODUCTION 



Amongst the novel objects that attracted my 
attention during my stay in the United States, 
nothing struck me more forcibly than the general 
i/ equality of conditions. I readily discovered the 
prodigious influence which this primary fact exer- 
cises on the whole course of society, by giving a 
certain direction to public opinion, and a certain 
tenour to the laws ; by imparting new maxims 
to the governing powers, and peculiar habits to 
the governed. 

I speedily perceived that the influence of this fact 
extends far beyond the political character and the 
laws of the country, and that it has no less empire 
over civil society than over the Government; it 
creates opinions, engenders sentiments, suggests 
the ordinary practices of life, and modifies what- 
ever it does not produce. 

The more I advanced in the study of American 



XIV 

society, the more I perceived that the equality of 
conditions is the fundamental fact from which all 
^others seem to be derived, and the central point at 
which all my observations constantly terminated. 

I then turned my thoughts to our own hemi- 
sphere, where I imagined that I discerned something 
analogous to the spectacle which the New World 
presented to me. I observed that the equality of 
conditions is daily progressing towards those ex- 
treme Hmits which it seems to have reached in the 
United States ; and that the democracy which go- 
verns the American communities appears to be 
rapidly rising into power in Europe. 

1 hence conceived the idea of the book which 
is now before the reader. 

It is evident to all alike that a great democratic 
revolution is going on amongst us ; but there are 
two opinions as to its nature and consequences. 
To some it appears to be a novel accident, which 
as such may still be checked ; to others it seems 
irresistible, because it is the most uniform, the 
most ancient, and the most permanent tendency 
which is to be found in history. 

Let us recollect the situation of France seven 
hundred years ago, when the territory was divided 
amongst a small number of families, who were the 



XV 

owners of the soil and the rulers of the inhabi- 
tants ; the right of governing descended with the 
family inheritance from generation to generation ; 
force was the only means by which man could act 
on man ; and landed property was the sole source 
of power. 

Soon, however, the political power of the clergy 
was founded, and began to exert itself: the clergy 
opened its ranks to all classes, to the poor and the 
rich, the villain and the lord ; equality penetrated 
into the Government through the Church, and 
the being who as a serf must have vegetated in 
perpetual bondage, took his place as a priest in 
the midst of nobles, and not unfrequently above 
the heads of kings. 

The different relations of men became more 
complicated and more numerous as society gradu- 
ally became more stable and more civilized. Thence 
the want of civil laws was felt ; and the order of 
legal functionaries soon rose from the obscurity of 
the tribunals and their dusty chambers, to appear at 
the court of the monarch, by the side of the feudal 
barons in their ermine and their mail. 

Whilst the kings were ruining themselves by 
their great enterprises, and the nobles exhausting 
their resources by private wars, the lower orders 



XVI 

were enriching themselves by commerce. The in- 
fluence of money began to be perceptible in State 
affairs. The transactions of business opened a 
new road to power, and the financier rose to a 
station of political influence in which he was at 
once flattered and despised. 

Gradually the spread of mental acquirements, 
and the increasing taste for literature and art, 
opened chances of success to talent ; science be- 
came a means of government, intelligence led to 
social power, and the man of letters took a part 
in the affairs of the State. 

The value attached to the privileges of birth 
decreased in the exact proportion in which new 
paths were struck out to advancement. In the 
eleventh century nobility was beyond all price ; 
in the thirteenth it might be purchased ; it was 
conferred for the first time in 1270; and equahty 
was thus introduced into the Government by the 
aristocracy itself. 

In the course of these seven hundred years, it 
sometimes happened that in order to resist the au- 
thority of the Crown, or to diminish the power of 
their rivals, the nobles granted a certain share of 
political rights to the people. Or, more frequently, 
the king permitted the lower orders to enjoy a de- 



XVll 

grée of power, with the intention of repressing the 
aristocracy. > 

In France the kings have always been the most 
^active and the most constant of levellers. When 
they were strong and ambitious, they spared no 
pains to raise the people to the level of the nobles ; 
when they were temperate or weak, they allowed 
the people to rise above themselves. Some assisted 
^e democracy by their talents, others by their vices. 
Louis XI. and Louis XIV. reduced every rank be- 
neath the throne to the same subjection ; Louis XV. 
descended, himself and all his Court, into the dust. 

As soon as land was held on any other than 
a feudal tenure, and personal property began in 
its turn to confer influence and power, every im- 
provement which was introduced in commerce or 
manufacture was a fresh element of the equality of 
conditions. Henceforward every new discovery, 
every new want which it engendered, and every 
new desire which craved satisfaction, was a step 
towards the universal level. The taste for luxury ,_ 
tuà love of war, the sway of fashion, and the mjost-. 
superficial as well as the deepest passions of th^— 
human heart, cooperated to enrich the poor and"" 
to impoverish the rich. 
"■, , From the time when the exercise of the intel- 



XVIU 



lect became the source of strength and of wealth, 
it is impossible not to consider every addition to 
science, every fresh truth, and every new idea as 
a germ of power placed within the reach of the 
people. Poetry, eloquence, and memory, the grace 
of wit, the glow of imagination, the depth of thought, 
and all the gifts which are bestowed by Providence 
/with an equal hand, turned to the advantage of 
the democracy ; and even when they were in the 
possession of its adversaries, they still served its 
cause by throwing into relief the natural greatness 
of man ; its conquests spread, therefore, with those 
of civilization and knowledge ; and literature be- 
came an arsenal, where the poorest and the weak- 
est could always find weapons to their hand. 

In perusing the pages of our history, we shall 
scarcely meet with a single great event, in the lapse 
of seven hundred years, which has not turned to 
the advantage of equality. 

The Crusades and the wars of the English deci- 
mated the nobles and divided their possessions : 
the erection of communities introduced an element 
of democratic liberty into the bosom of feudal 
monarchy ; the invention of fire-arms equalized 
the villain and the noble on the field of battle ; 
printing opened the same resources to the minds 



XIX 



of all classes ; the post was organized so as to 
bring the same information to the door of the poor 
man's cottage, and to the gate of the palace ; and 
Protestantism proclaimed that all men are alike rx"" 
able to find the road to heaven. The discovery of 
America offered a thousand new paths to fortune, 
and placed riches and power within the reach of 
the adventurous and the obscure. 

If we examine what has happened in France 
at intervals of fifty years, beginning with the ele- 
venth century, we shall invariably perceive that a 
twofold revolution has taken place in the state of 
society. The noble has gone down on the social 
ladder, and the roturier has gone up ; the one de- 
scends as the other rises. Every half-century brings 
them nearer to each other, and they will very 
shortly meet. 

Nor is this pheenomenon at all peculiar to France. 
Whithersoever we turn our eyes we shall witness 
the same continual revolution throughout the whole 
of Christendom. 

The various occurrences of national existence 
have everywhere turned to the advantage of demo- 
cracy ; all men have aided it by their exertions : 
those who have intentionally laboured in its cause, 

b2 



XX 

and those who have served it unwittingly ; those 
who have fought for it, and those who have declared 
themselves its opponents, — have all been driven 
along in the same track, have all laboured to one 
end, some ignorantly and some unwillingly ; all 
have been blind instruments in the hands of God. 

The gradual development of the equality of con- 
ditions is therefore a providential fact, and it pos- 
sesses all the characteristics of a Divine decree : it 
is universal, it is durable, it constantly eludes all 
human interference, and all events as well as all 
men contribute to its progress. 

Would it, then, be wise to imagine that a social 
impulse which dates from so far back, can be 
checked by the efforts of a generation ? Is it credible 
that the democracy which has annihilated the feudal 
system, and vanquished kings, will respect the 
citizen and the capitalist ? Will it stop now that 
it is grown so strong, and its adversaries so 
weak? 

None can say which way we are going, for all 
terms of comparison are wanting : the equality of 
conditions is more complete in the Christian coun- 
tries of the present day, than it has been at any 
time, or in any part of the world ; so that the 



XXI 

extent of what already exists prevents us from 
foreseeing what may be yet to come. 

The whole book which is here offered to the 
public has been written under the impression of 
a kind of religious dread produced in the author's 
mind by the contemplation of so irresistible a revo- 
lution, which has advanced for centuries in spite of 
such amazing obstacles, and which is still proceed- 
ing in the midst of the ruins it has made. 

It is not necessary that God himself should speak 
in order to disclose to us the unquestionable signs 
of his will ; we can discern them in the habitual 
course of nature, and in the invariable tendency of 
events : I know, without a special revelation, that 
the planets move in the orbits traced by the 
Creator's finger. 

If the men of our time were led by attentive 
observation, and by sincere reflection, to acknow- 
ledge that the gradual and progressive development 
of social equality is at once the past and future of 
their history, this solitary truth would confer the 
sacred character of a Divine decree upon the 
change. To attempt to check democracy would^ \ 
be in that case to resist the will of God ; and the 
nations would then be constrained to make the best 
of the social lot awarded to them by Providence. 



r 



XXll 

The Christian nations of our age seem to me to 
present a most alarming spectacle ; the impulse 
which is bearing them along is so strong that it 
cannot be stopped, but it is not yet so rapid that it 
cannot be guided : their fate is in their hands ; yet 
a little while and it may be so no longer. 
**""^ The first duty which is at this time imposed 
upon those who direct our affairs is to educate the 
democracy ; to warm its faith, if that be possible ; 
to_purifyJts morala; to direct its energies; to 
substitute a knowledge of business for its inexperi- 
ence, and an acquaintance with its true interests 
for its blind propensities ; to adapt its govern- 
ment to time and place, and to modify it in com- 
pliance with the occurrences and the actors of the 
age. 

A~new science of politics is indispensable to a 
new world. 

This, however, is what we think of least ; launched 
in the middle of a rapid stream, we obstinately fix 
our eyes on the ruins which may still be descried 
upon the shore we have left, whilst the current 
sweeps us along, and drives us backwards toward 
the gulf. 

In no country in Europe has the great social revo- 
lution which I have been describing made such ra- 



XXlll 



pid progress as in France; but it has always been 
borne on by chance. The heads of the State have 
never had any forethought for its exigencies, and 
its victories have been obtained without their 
consent or without their knowledge. The mpat 
powerful, the most intelligent, and the most moral 
classes of the nation have never attempted to con- 
nect themsëlvéslvîth it in jrder to guideiL The 
people has consequently been abandoned to its 
wild propensities, and it has grown up like those 
outcasts who receive their education in the public 
streets, and who are unacquainted with aught but 
the vices and wretchedness of society. The existence 
of a democracy was seemingly unknown, when on 
a sudden it took possession of the supreme power. 
Everything was then submitted to its caprices ; it 
was worshiped as the idol of strength ; until, when 
it was enfeebled by its own excesses, the legislator 
conceived the rash project of annihilating its power, 
instead of instructing it and correcting its vices ; 
no attempt was made to fit it to govern, but all 
were bent on excluding it from the Government. ' 
The consequence of this has been that the de- 
mocratic revolution has been effected only in the 
material parts of society, without that concomitant 
change in laws, ideas, customs and manners which 



XXIV 

was necessary to render such a revolution beneficial. 
We have gotten a democracy, but without the con- 
ditions which lessen its vices and render its natu- 
ral advantages more prominent ; and although we 
already perceive the evils it brings, we are ignorant 
of the benefits it may confer. 

"While the power of the Crown, supported by the 
aristocracy, peaceably governed the nations of Eu- 
rope, society possessed, in the midst of its wretched- 
ness, several different advantages which can now 
scarcely be appreciated or conceived. 

The power of a part of his subjects was an insur- 
mountable barrier to the tyranny of the prince ; 
and the monarch, who felt the almost divine cha- 
racter which he enjoyed in the eyes of the multitude, 
derived a motive for the just use of his power from 
the respect which he inspired. 

High as they were placed above the people, the 
nobles could not but take that calm and benevolent 
interest in its fate which the shepherd feels towards 
his flock ; and without acknowledging the poor as 
their equals, they watched over the destiny of those 
whose welfare Providence had entrusted to their 
care. 

The people, never having conceived the idea of 
a social condition different from its own, and en- 



XXV 

tertaining no expectation of ever ranking with its 
chiefs, received benefits from them without discuss- 
ing their rights. It grew attached to them when 
they were clement and just, and it submitted with- 
out resistance or serviUty to their exactions, as to 
the inevitable visitations of the arm of God. Cus- 
tom, and the manners of the time, had moreover 
created a species of law in the midst of violence, 
and established certain limits to oppression. 

As the noble never suspected that any one would 
attempt to deprive him of the privileges which he 
believed to be legitimate, and as the serf looked 
upon his own inferiority as a consequence of the 
immutable order of nature, it is easy to imagine that 
a mutual exchange of good-will took place between 
two classes so differently gifted by fate. Inequa- 
lity and wretchedness were then to be found in so- 
ciety ; but the souls of neither rank of men were 
degraded. 

Men are not corrupted by the exercise of power 
or debased by the habit of obedience ; but by the 
exercise of a power which they believe to be illegal 
and by obedience to a rule which they consider to 
be usurped and oppressive. 

On one side was wealth, strength, and leisure, 
accompanied by the refinements of luxury, the ele- 



XXVI 



gance of taste, the pleasures of wit, and the reUgion 
of art. On the other was labour, and a rude igno- 
rance ; but in the midst of this coarse and ignorant 
multitude, it was not uncommon to meet with 
energetic passions, generous sentiments, profound 
religious convictions, and independent virtues. 

The body of a State thus organized might boast 
of its stability, its power, and, above all, of its 
glory. 

But the scene is now changed, and gradually the 
two ranks mingle ; the divisions which once se- 
vered mankind are lowered ; property is divided, 
power is held in common, the light of intelligence 
spreads, and the capacities of all classes are equally 
cultivated ; the State becomes democratic, and the 
empire of democracy is slowly and peaceably intro- 
duced into the institutions and the manners of the 
nation. 

-i^i^aii^^^^neeive^nsocietyiii which all men would 
profess an equal attachment and respect for the, 
laws of which they are the common authors ; in \ 
which the authority of the State would be respected 
as necessary, though not as divine ; and the loyalty 
of the subject to the chief magistrate would not 
be a passion, but a quiet ^d^ rational persuasion^ 
^EvST^indrnduaTbeing in the possession of rights 



XXVll 

which he is sure to retain, a kind of manly reliance, 
and reciprocal courtesy would arise between all 
classes, alike removed from pride and meanness. 

The people, well acquainted with its true inter- 
ests, would allow, that in order to profit by the 
advantages of society, it is necessary to satisfy its 
demands. In this state of things, the voluntary as- 
sociation of the citizens might supply the indivi- 
dual exertions of the nobles, and the community 
would be alike protected from anarchy and from 
oppression. 

I admit that, in a democratic State thus consti- 
tuted, society will not be stationary ; but the im- 
pulses of the social body may be regulated and di- 
rected forwards ; if there be less splendour than in 
the halls of an aristocracy, the contrast of misery 
will be less frequent also ; the pleasures of enjoy- 
ment may be less excessive, but those of comfort 
will be more general ; the sciences may be less per- 
fectly cultivated, but ignorance will be less com- 
mon ; the impetuosity of the feelings will be re- 
pressed, and the habits of the nation softened; there 
will be more vices and fewer crimes. 

In the absence of enthusiasm and of an ardent 
faith, great sacrifices may be obtained from the 
members of a commonwealth by an appeal to their 



XXVlll 



understandings and their experience : each indivi- 
dual will feel the same necessity for uniting with his 
fellow-citizens to protect his own weakness ; and 
as he knows that if they are to assist, he must co- 
operate, he will readily perceive that his personal 
interest is identified with the interest of the com- 
munity. 

The nation, taken as a whole, will be less bril- 
liant, less glorious, and perhaps less strong; but 
the majority of the citizens will enjoy a greater de- 
gree of prosperity, and the people will remain quiet, 
not because it despairs of amelioration, but because 
it is conscious of the advantages of its condition. 

If all the consequences of this state of things were 
not good or useful, society would at least have ap- 
propriated all such as were useful and good ; and 
having once and for ever renounced the social ad- 
vantages of aristocracy, mankind would enter into 
possession of all the benefits which democracy can 
afford. 

But here it may be asked what we have adopted 
in the place of those institutions, those ideas, and 
those customs of our forefathers which we have 
abandoned. 

The spell of royalty is broken, but it has not 
been succeeded by the majesty of the laws ; the 



XXIX 



people has learned to despise all authority, but fear 
now extorts a larger tribute of obedience than that 
which was formerly paid by reverence and by love. 

I perceive that we have destroyed those indepen- 
dent beings which were able to cope with tyranny 
single-handed ; but it is the Government that has 
inherited the privileges of which families, corpora- 
tions, and individuals have been deprived ; the 
weakness of the whole community has therefore 
succeeded that influence of a small body of citi- 
zens, which, if it was sometimes oppressive, was 
often conservative. 

The division of property has lessened the distance 
which separated the rich from the poor; but it would 
seem that the nearer they draw to each other, the 
greater is their mutual hatred, and the more vehe- 
ment the envy and the dread with which they re- 
sist each other's claims to power; the notion of 
Right is alike insensible to both classes, and Force 
affords to both the only argument for the present, 
and the only guarantee for the future. 

The poor man retains the prejudices of his fore- 
fathers without their faith, and their ignorance 
without their virtues ; he has adopted the doctrine 
of self-interest as the rule of his actions, without 
understanding the science which controls it, and 



XXX 

his egotism is no less blind than his devotedness 
was formerly. 

If society is tranquil, it is not because it relies 
upon its strength and its well-being, but because it 
knows its weakness and its infirmities ; a single 
effort may cost it its life ; everybody feels the evil, 
but no one has courage or energy enough to seek 
the cure ; the desires, the regret, the sorrows, and 
the joys of the time produce nothing that is visible 
or permanent, like the passions of old men which 
terminate in impotence. 

We have, then, abandoned whatever advantages 
the old state of things afforded, without receiving 
any compensation from our present condition ; we 
have destroyed an aristocracy, and we seem inclined 
to survey its ruins with complacency, and to ûx 
our abode in the midst of them. 

The phsenomena which the intellectual world 
presents are not less deplorable. The democracy of 
France, checked in its course or abandoned to its 
lawless passions, has overthrown whatever crossed 
its path, and has shaken all that it has not de- 
stroyed. Its empire on society has not been gradually 
introduced, or peaceably established, but it has con- 
stantly advanced in the midst of disorder and the 
agitation of a conflict. In the heat of the struggle 



XXXI 



each partisan is hurried beyond the limits of his 
opinions by the opinions and the excesses of his 
opponents, until he loses sight of the end of his 
exertions, and holds a language which disguises his 
real sentiments or secret instincts. Hence arises 
the strange confusion which we are witnessing. 

I cannot recall to my mind a passage in history 
more worthy of sorrow and of pity than the scenes 
which are happening under our eyes ; it is as 
if the natural bond which unites the opinions of 
man to his tastes, and his actions to his principles, 
was now broken ; the sympathy which has always 
been acknowledged between the feelings and the 
ideas of mankind appears to be dissolved, and all 
the laws of moral analogy to be abolished. 

Zealous Christians may be found amongst us, 
whose minds are nurtured in the love and know- 
ledge of a future hfe, and who readily espouse the 
cause of human liberty, as the source of all moral 
greatness. Christianity, which has declared thaf 
all men are equal in the sight of God, will not re- 
fuse to acknowledge that all citizens are equal in 
the eye of the law. But, by a singular concourse 
of events, religion is entangled in those institutions 
which democracy assails, and it is not unfrequently 
brought to reject the equaUty it loves, and to curse 



XXXll 

that cause of liberty as a foe, which it might hallow 
by its alliance. 

By the side of these religious men I discern 
others whose looks are turned to the earth more 
than to Heaven ; they are the partisans of liberty, 
not only as the source of the noblest virtues, but 
more especially as the root of all solid advantages ; 
and they sincerely desire to extend its sway, and to 
impart its blessings to mankind. It is natural that 
they should hasten to invoke the assistance of reli- 
gion, for they must know that liberty cannot be 
established without morality, nor morality without 
faith ; but they have seen religion in the ranks of 
their adversaries, and they inquire no further; some 
of them attack it openly, and the remainder are 
afraid to defend it. 

In former ages slavery has been advocated by 
the venal and slavish-minded, whilst the indepen- 
dent and the warm-hearted were struggling without 
hope to save the liberties of mankind. But men 
of high and generous characters are now to be met 
with, whose opinions are at variance with their in- 
clinations, and who praise that servility which they 
have themselves never known. Others, on the con- 
trary, speak in the name of liberty, as if they were 
able to feel its sanctity and its majesty, and loudly 



XXXlll 



claim for humanity those rights which they have 
always disowned. 

There are virtuous and peaceful individuals whose 
pure morality, quiet habits, affluence, and talents 
fit them to be the leaders of the surrounding popu- 
lation ; their love of their country is sincere, and 
they are prepared to make the greatest sacrifices to 
its welfare, but they confound the abuses of civili- 
zation with its benefits, and the idea of evil is in- 
separable in their minds from that of novelty. 

Not far from this class is another party, whose 
object is to materialize mankind, to hit upon what 
is expedient without heeding what is just, to ac- 
quire knowledge without faith, and prosperity apart 
from virtue ; assuming the title of the champions 
of modern civilization, and placing themselves in a 
station which they usurp with insolence, and from 
which they are driven by their own unworthiness. 

Where are we then ? 

The religionists are the enemies of liberty, and 
the friends of liberty attack religion ; the high- 
minded and the noble advocate subjection, and the 
meanest and most servile minds preach indepen- 
dence ; honest and enlightened citizens are opposed 
to all progress, whilst men without patriotism and 

VOL. I. c 



XXXIV 

without principles are the apostles of civilization 
and of intelligence. 

Has such been the fate of the centuries which 
have preceded our own ? and has man always in- 
habited a world, like the present, where nothing is 
linked together, where virtue is without genius, 
and genius without honour ; where the love of order 
is confounded with a taste for oppression, and the 
holy rites of freedom with a contempt of law; where 
the light thrown by conscience on human actions 
is dim, and where nothing seems to be any longer 
forbidden or allowed, honourable or shameful, false 
or true ? 

I cannot, however, believe that the Creator made 
man to leave him in an endless struggle with the 
intellectual miseries which surround us : God des- 
tines a calmer and a more certain future to the 
communities of Europe ; I am unacquainted with 
his designs, but I shall not cease to believe in them 
because I cannot fathom them, and I had rather 
mistrust my own capacity than his justice. 
K'' There is a country in the world where the great 
I revolution which I am speaking of seems nearly to 
I have reached its natural limits ; it has been effected 
with ease and simplicity, say rather that this coun- 



XXXV 

try has attained the consequences of the democratic^ 
revolution which we are undergoing, without having 
experienced the revolution itself. 

The emigrants who fixed themselves on the shores 
of America in the beginning of the seventeenth cen- 
tury, severed the democratic principle from all the 
principles which repressed it in the old communities 
of Europe, and transplanted it unalloyed to the New 
World. It has there been allowed to spread in per- 
fect freedom, and to put forth its consequences in 
the laws by influencing the manners of the country,. 

It appears to me beyond a doubt that sooner or 
later we shall arrive, like the Americans, at an al- 
most complete equality of conditions. But I do 
not conclude from this, that we shall ever be neces- 
sarily led to draw the same political consequences 
which the Americans have derived from a similar 
social organization. I am far from supposing that 
they have chosen the only form of government which 
a democracy may adopt ; but the identity of the 
efficient cause of laws and manners in the two coun- 
tries is sufficient to account for the immense inter- 
est we have in becoming acquainted with its effects 
in each of them. 

It is not, then, merely to satisfy a legitimate cu- 
riosity that I have examined America ; my wish has 

c2 



. XXXVl 

\ been to find instruction by which we may ourselves 
\ profit. Whoever should imagine that I have in- 
tended to write a panegyric would be strangely mis- 
taken, and on reading this book he will perceive 
that such was not my design : nor has it been my 
object to advocate any form of government in par- 
ticular, for I am of opinion that absolute excellence 
is rarely to be found in any legislation ; I have not 
even affected to discuss whether the social revolu- 
tion, which I believe to be irresistible, is advanta- 
geous or prejudicial to mankind ; I have acknow- 
ledged this revolution as a fact already accomplished 
or on the eve of its accomplishment ; and I have se- 
lected the nation, from amongst those which have 
undergone it, in which its development has been the 
most peaceful and the most complete, in order to 
discern its natural consequences, and, if it be pos- 
sible, to distinguish the means by which it may be 
I rendered profitable. I confess that in America I saw 
j more than America ; I sought the image of demo- 
\ eracy itself, with its inclinations, its character, its 
I prejudices, and its passions, in order to learn what 
I we have to fear or to hope from its progress. 

In the first part of this work I have attempted to 
I show the tendency given to the laws by the demo- 
j cracy of America, which is abandoned almost with- 



xxxvu 

out restraint to its instinctive propensities ; and to 
exhibit the course it prescribes to the Government 
and the influence it exercises on affairs. I have 
sought to discover the evils and the advantages 
which it produces. I have examined the precau- 
tions used by the Americans to direct it, as well as 
those which they have not adopted, and I have un- 
dertaken to point out the causes which enable it to 
govern society. 

It was my intention to depict, in a second part, 
the influence w^hich the equality of conditions and 
the rule of democracy exercise on the civil society, 
the habits, the ideas, and the manners of the Ame- 
ricans ; I begin, however, to feel less ardour for the 
accomplishment of this project, since the excellent 
work of my friend and travelling companion M. de 
Beaumont has been given to the world*. I do not 
know whether I have succeeded in making known 
what I saw in America, but I am certain that such 
has been my sincere desire, and that I have never, 
knowingly, moulded facts to ideas, instead of ideas 
to facts. 

Whenever a point could be estabhshed by the aid 
of written documents, I have had recourse to the 
original text, and to the most authentic and ap- 

» This work is entitled Marie, ou l'Esclavage aux Etats-Unis. 



XXXVlll 

proved works * . I have cited my authorities in the 
notes, and any one may refer to them. Whenever 
an opinion, a poHtical custom, or a remark on the 
manners of the country was concerned, I endeavoured 
to consult the most enlightened men I met with. If 
the point in question was important or doubtful, I 
was not satisfied with one testimony, but I formed 
my opinion on the evidence of several witnesses. 
Here the reader must necessarily believe me upon 
my word. I could frequently have quoted names 
which are either known to him, or which deserve to 
be so, in proof of what I advance ; but I have care- 
fully abstained from this practice. A stranger fre- 
quently hears important truths at the fire-side of 
his host, which the latter would perhaps conceal 
from the ear of friendship ; he consoles himself with 
his guest for the silence to which he is restricted, 
and the shortness of the traveller's stay takes away 

^ Legislative and administrative documents have been furnished 
me vrith a degree of politeness which I shall always remember 
with gratitude. Amongst the American functionaries who thus 
favoured my inquiries I am proud to name Mr. Edward Living- 
ston, then Secretary of State, and late American Minister at Paris. 
During my stay at the Session of Congress Mr. Livingston was 
kind enough to furnish me with the greater part of the documents 
I possess relative to the Federal Government. Mr. Livingston 
is one of those rare individuals whom one loves, respects, and ad- 
mires from their writings, and to whom one is happy to incur the 
debt of gratitude on further acquaintance. 



XXXIX 

all fear of his indiscretion. I carefully noted every 
conversation of this nature as soon as it occurred, 
but these notes will never leave my writing-case ; I 
had rather injure the success of my statements than 
add my name to the list of those strangers who re- 
pay the generous hospitality they have received by 
subsequent chagrin and annoyance. 

I am aware that, notwithstanding my care, nothing 
will be easier than to criticise this book, if any one 
ever chooses to criticise it. 

Those readers who may examine it closely will 
discover the fundamental idea which connects the 
several parts together. But the diversity of the 
subjects I have had to treat is exceedingly great, and 
it will not be difficult to oppose an isolated fact to 
the body of facts which I quote, or an isolated idea 
to the body of ideas I put forth. I hope to be read 
in the spirit which has guided my labours, and that 
my book may be judged by the general impression 
it leaves, as I have formed my own judgement not on 
any single reason, but upon the mass of evidence. 

It must not be forgotten that the author who 
wishes to be understood is obliged to push all his 
ideas to their utmost theoretical consequences, and 
often to the verge of what is false or impracticable ; 
for if it be necessary sometimes to quit the rules of 



xl 

logic in active life, such is not the case in discourse, 
and a man finds that almost as many difficulties 
spring from inconsistency of language, as usually 
arise from consistency of conduct. 

I conclude by pointing out myself what many 
readers will consider the principal defect of the 
work. This book is written to favour no particular 
views, and in composing it I have entertained no 
design of serving or attacking any party : I have 
undertaken not to see differently, but to look 
further than parties, and whilst they are busied 
for the morrow, I have turned my thoughts to the 
Future. 



TABLE OF CONTENTS 



THE FIRST VOLUME. 



Page. 

Tbanslator's Preface v 

Introduction xiii 



V CHAPTER I. 

Exterior form of North America 1 



; 



J 

CHAPTER IL 

Origin of the Anglo-Americans, and its importance in rela- 
tion to their future condition 16 

Reasons of certain anomalies which the laws and cus- 
toms of the Anglo-Americans present 46 

CHAPTER III. 

Social condition of the Anglo-Americans 4$ 

The striking characteristic of the social condition of the 

Anglo-Americans is its essential Democracy ib. 

Political consequences of the social condition of the 

Anglo-Americans 61 

Vol. I. d 



xlii 



CHAPTER IV. 

Page. 
The principle of the sovereignty of the people in America. . 64 



CHAPTER V. 

r^ecessity of examining the condition of the States before 

that of the Union at large 69 

The American system of townships and municipal 

bodies 71 

limits of the townships 74 

Authorities of the township in New England 75 

Existence of the township 79 

Public spirit of the townships of New England 82 

The counties of New England 86 

Administration in New England 88 

General remarks on the Administration of the United 

States 103 

Of the State 110 

Legislative power of the State Ill 

The executive power of the State 113 

Political effects of the system of local administration 

in the United States 115 



J. 



CHAPTER VI. 



Judicial power in the United States, and its influence on 

political society 135 

Other powers granted to the American Judges 144 



CHAPTER VII. 
Political jurisdictiQn in the United States 148 



xliii 



CHAPTER VIII. 

Page. 

The Federal Constitution 157 

History of the Federal Constitution ib. 

Summary of the Federal Constitution 161 

Prerogative of the Federal Government 1 63 

Federal Powers 1 66 

Legislative Powers ib, 

^* A further difference between the Senate and the House 

of Representatives 171 

The executive power 172 

Differences between the position of the President of the 

United States and that of a Constitutional King of 

France 175 

Accidental causes which may increase the influence of 

the Executive Government 1 80 

Why the President of the United States does not re- f/^ 

quire the majority of the two Houses in order to 

carry on the Government 182 

Election of the President 184 

Mode of election 191 

Crisis of the election. . , 196 

Re-election of the President 199 

Federal Courts 203 

Means of determining the jurisdiction of the Federal 

Courts 208 

Different cases of jurisdiction 211 

Procedure of the Federal Courts 219 

High rank of the Supreme Courts amongst the great 

powers of the State 223 

In what respects the Federal Constitution is superior to 

that of the States 227 

Characteristics which distinguish the Federal Constitu- 



xliv 



je. 



tion of the United States of America from all other 
Federal Constitutions 233 

Advantages of the Federal system in general, and its 
special utility in America 239 

Why the Federal system is not adapted to all peoples, 
and how the Anglo-Americans were enabled to 

adopt it 249 

Appendix .,..,.. 263 

The Constitution of the United States 293 

The Constitution of the State of New York 313 



DEMOCRACY IN AMERICA. 



CHAPTER I. 



EXTERIOR FORM OF NORTH AMERICA. 

North America divided into two vast regions, one inclining 
y towards the Pole, the other towards the Equator. — Valley 
^ of the Mississippi. — Traces of the Revolutions of the Globe. — 
Shore of the Atlantic Ocean, where the English Colonies 
were founded. — Difference in the appearance of North and of 
South America at the time of their discovery. — Forests of 
North America. — Prairies. — Wandering Tribes of Natives. — 
Their outward appearance, manners, and language. — Traces 
of an unknown people. 

North America presents in its external form 
certain general features which it is easy to discri- 
minate at the first glance. 

A sort of methodical order seems to have regu- 
lated the separation of land and water, mountains 
and valleys. A simple hut grand arrangement is 
discoverable amidst the confusion of objects, and 
the prodigious variety of scenes. 

This Continent is divided, almost equally, into 
two vast regions', one of which is bounded, on 

' See the Map at the end of the Volume. 
VOL. I. B 



the north by the Arctic Pole, and by the two 
great Oceans on the east and west. It stretches 
towards the south, forming a triangle, whose irre- 
gular sides meet at length below the great lakes of 
Canada. 

The second region begins where the other ter- 
minates, and includes all the remainder of the 
continent. 

The one slopes gently towards the Pole, the other 
towards the Equator. 

The territory comprehended in the first region 
descends towards the north with so imperceptible 
a slope, that it may almost be said to form a level 
plain. Within the bounds of this immense tract 
of country there are neither high mountains nor 
deep valleys. Streams meander through it irregu- 
larly ; great rivers mix their currents, separate and 
meet again, disperse and form vast marshes, losing 
all trace of their channels in the labyrinth of waters 
they have themselves created ; and thus at length, 
after innumerable windings, fall into the Polar seas. 
The great lakes which bound this first region are not 
walled in, like most of those in the Old World, be- 
tween hills and rocks. Their banks are flat, and 
rise but a few feet above the level of their waters ; 
each of them thus forming a vast bowl filled to the 
brim. The slightest change in the structure of the 
globe would cause their waters to rush either towards 
the Pole or to the Tropical Sea. 

The second region is more varied on its surface, 



and better suited for the habitation of man. Two 
long chains of mountains divide it from one extreme 
to the other ; the Alleghany ridge takes the form of 
the shores of the Atlantic Ocean ; the other is pa- 
rallel with the Pacific. 

The space which lies between these two chains of 
mountains contains 1,341,649 square miles \ Its 
surface is therefore about six times as great as that 
of France. 

This vast territory, however, forms a single val- 
ley, one side of which descends gradually from the 
rounded summits of the Alleghanies, while the other 
rises in an uninterrupted course towards the tops of 
the Rocky Mountains. 

At the bottom of the valley flows an immense 
river, into which the various streams issuing from 
the mountains fall from all parts. In memory of 
their native land, the French formerly called this 
river the St. Louis. The Indians, in their pompous 
language, have named it the Father of Waters, or 
the Mississippi. 

The Mississippi takes its source above the limit 
of the two great regions of which I have spoken, 
not far from the highest point of the table-land 
where they unite. Near the same spot rises an- 
other river ^ which empties itself into the Polar seas. 
The course of the Mississippi is at first dubious : it 
winds several times towards the north, from whence 
it rose ; and at length, after having been delayed 

» ' Darby's View of the United States.' ^ The Red River. 

B 2 



in lakes and marshes, it flows slowly onwards to 
the south. 

Sometimes quietly gliding along the argillaceous 
bed which nature has assigned to it, sometimes 
swolnby storms, the Mississippi waters 2500 miles 
in its course \ At the distance of 1364 miles from its 
mouth, this river attains an average depth of fifteen 
feet ; and it is navigated by vessels of 300 tons bur- 
den for a course of nearly 500 miles. Fifty-seven 
large navigable rivers contribute to swell the waters 
of the Mississippi ; amongst others, the Missouri, 
which traverses a space of 2500 miles, the Arkan- 
sas of 1300 miles, the Red River 1000 miles ; four 
whose course is from 800 to 1000 miles in length, viz. 
the Illinois, the St. Peter's, the St. Francis, and the 
Moingona; besides a countless multitude of rivulets 
which unite from all parts their tributary streams. 

The valley which is watered by the Mississippi 
seems formed to be the bed of this mighty river, 
which like a god of antiquity dispenses both good 
and evil in its course. On the shores of the stream 
nature displays an inexhaustible fertility ; in pro- 
portion as you recede from its banks, the powers of 
vegetation languish, the soil becomes poor, and the 
plants that survive have a sickly growth. Nowhere 
have the great convulsions of the globe left more 
evident traces than in the valley of the Mississippi : 
the whole aspect of the country shows the power- 
ful effects of water, both by its fertility and by its 

' Warden's ' Description of the United States.' 



barrenness. The waters of the primeval ocean ac- 
cumulated enormous beds of vegetable mould in the 
valley, which they levelled as they retired. Upon 
the right shore of the river are seen immense 
plains, as smooth as if the husbandman had passed 
over them with his roller. As you approach the 
mountains, the soil becomes more and more un- 
equal and sterile ; the ground is, as it were, pierced 
in a thousand places by primitive rocks, which ap- 
pear like the bones of a skeleton whose flesh is 
partly consumed. The surface of the earth is co- 
vered with a granitic sand and huge irregular masses 
of stone, among which a few plants force their 
growth, and give the appearance of a green field 
covered with the ruins of a vast edifice. These stones 
and this sand discover, on examination, a perfect 
analogy with those which compose the arid and 
broken summits of the Rocky Mountains. The flood 
of waters which washed the soil to the bottom of 
the valley, afterwards carried away portions of the 
rocks themselves ; and these, dashed and bruised 
against the neighbouring cliffs, were left scattered 
like wrecks at their feet\ 

The Valley of the Mississippi is, upon the whole, 
the most magnificent dwelling-place prepared by 
God for man's abode ; and yet it may be said that 
at present it is but a mighty desert. 

On the eastern side of the AUeghanies, between 
the base of these mountains and the Atlantic Ocean, 

1 See Appendix, A. 



there lies a long ridge of rocks and sand, which the 
sea appears to have left behind as it retired. The 
mean breadth of this territory does not exceed one 
hundred miles ; but it is about nine hundred miles in 
length. This part of the American continent has a 
soil which offers every obstacle to the husbandman, 
and its vegetation is scanty and unvaried. 

Upon this inhospitable coast the first united ef- 
forts of human industry were made. This tongue 
/ of arid land was the cradle of those English colo- 
nies which were destined one day to become the 
United States of America. The centre of power 
still remains here ; whilst in the backward States 
the true elements of the great people to whom the 
future control of the continent belongs are secretly 
springing up. 

When the Europeans first landed on the shores 
of the Antilles, and afterwards on the coast of South 
V America, they thought themselves transported into 
those fabulous regions of which poets had sung. 
The sea sparkled with phosphoric light, and the 
extraordinary transparency of its waters discovered 
to the view of the navigator all that had hitherto 
been hidden in the deep abyss'. Here and there 
appeared little islands perfumed with odoriferous 

1 Malte Brun tells us (vol. v. p. 726,) that the water of the Ca- 
ribbean sea is so transparent, that corals and fish are discernible 
at a depth of sixty fathoms. The ship seemed to float in air, the 
navigator became giddy as his eye penetrated through the crystal 
flood, and beheld submarine gardens, or beds of shells, or gilded 
fishes gliding among tufts and thickets of sea- weed. 



plants, and resembling baskets of flowers floating 
on the tranquil surface of the ocean. Every object 
which met the sight, in this enchanting region, 
seemed prepared to satisfy the wants, or contribute 
to the pleasures of man. Almost all the trees were 
loaded with nourishing fruits, and those which were 
useless as food delighted the eye by the brilliancy 
and variety of their colours. In groves of fragrant 
lemon-trees, wild figs, flowering-myrtles, acacias, 
and oleanders, which were hung with festoons of va- 
rious climbing-plants, covered with flowers, a mul- 
titude of birds unknown in Europe displayed their 
bright plumage, glittering with purple and azure, 
and mingled their warbling with the harmony of a 
world teeming with life and motion \ 

Underneath this brilliant exterior, death was 
concealed. The air of these climates had so enerva- 
ting an influence, that man, completely absorbed by 
present enjoyment, was rendered regardless of the 
future. 

North America appeared under a very different 
^ aspect : there, everything was grave, serious, and 
solemn ; it seemed created to be the domain of in- 
telligence, as the South was that of sensual delight. 
A turbulent and foggy ocean washed its shores. It 
was girded round by a belt of granitic rocks, or by 
wide plains of sand. The foliage of its woods was 
dark and gloomy ; for they were composed of firs, 
larches, evergreen oaks, wild olive-trees, and laurels. 

' See Appendix, B. 



8 

Beyond this outer belt lay the thick shades of the 
central forests, where the largest trees which are 
produced in the two hemispheres grow side by side. 
The plane, the catalpa, the sugar-maple, and the 
Virginian poplar, mingled their branches with those 
of the oak, the beech, and the lime. 

In these, as in the forests of the Old World, de- 
struction was perpetually going on. The ruins of 
vegetation were heaped upon each other ; but there 
was no labouring hand to remove them, and their 
decay was not rapid enough to make room for the 
continual work of reproduction. Climbing-plants, 
grasses, and other herbs forced their way through 
the mass of dying trees ; they crept along their 
bending trunks, found nourishment in their dusty 
cavities, and a passage beneath the lifeless bark. 
Thus decay gave its assistance to life, and their re- 
spective productions were mingled together. The 
depths of these forests were gloomy and obscure, 
and a thousand rivulets, undirected in their course 
by human industry, preserved in them a constant 
moisture. It was rare to meet with flowers, wild 
fruits, or birds, beneath their shades. The fall of 
a tree overthrown by age, the rushing torrent of 
a cataract, the lowing of the buffalo, and the howl- 
ing of the wind, were the only sounds which broke 
the silence of nature. 

To the east of the great river, the woods almost 

"^^disappeared ; in their stead were seen prairies of 

immense extent. Whether Nature in her infinite 



variety had denied the germs of trees to these fer- 
tile plains, or whether they had once been covered 
with forests, subsequently destroyed by the hand of 
man, is a question which neither tradition nor sci- 
entific research has been able to resolve. 

These immense deserts were not, however, de- 
void of human inhabitants. Some wandering tribes 
had been for ages scattered among the forest shades 
or the green pastures of the prairie. From the 
mouth of the St. Lawrence to the Delta of the 

Y Mississippi, and from the Atlantic to the Pacific 
Ocean, these savages possessed certain points of re- 
semblance which bore witness of their common ori- 
gin : but at the same time they differed from all 
other known races of men' : they were neither white 
like the Europeans, nor yellow like most of the 
Asiatics, nor black like the negroes. Their skin was 
reddish brown, their hair long and shining, their 

^^lips thin, and their cheekbones very prominent. The 
languages spoken by the North American tribes 
were various as far as regarded their words, but 

' With the progress of discovery, some resemblance has been 
found to exist between the physical conformation, the language 
and the habits of the Indians of North America, and those of 
the Tongous, Mantchous, Moguls, Tatars, and other wandering 
tribes of Asia. The land occupied by these tribes is not very 
distant from Behring's Strait; which allows of the supposition, 
that at a remote period they gave inhabitants to the desert con- 
tinent of America. But this is a point which has not yet been 
clearly elucidated by science. See Malte Brun, vol. v.; the works 
of Humboldt; Fischer, ' Conjecture sur l'Origine des Américains ; ' 
Adair, 'History of the American Indians.' 



w 

they were subject to the same grammatical rules. 
These rules differed in several points from such as 
had been observed to govern the origin of language. 

The idiom of the Americans seemed to be the 
product of new combinations ; and bespoke an ef- 
fort of the understanding of which the Indians of 
our days would be incapable \ 

The social state of these tribes differed also in 
many respects from all that was seen in the Old 
World. They seemed to have multiplied freely in 
the midst of their deserts, without coming in con- 
tact with other races more civilized than their own. 
Accordingly, they exhibited none of those indistinct, 
incoherent notions of right and wrong, none of that 
deep corruption of manners which is usually joined 
with ignorance and rudeness among nations which, 
after advancing to civilization, have relapsed into a, 
state of barbarism. The Indian was indebted to 
no one but himself; his virtues, his vices, and his 
J prejudices were his own work ; he had grown up 
in the wild independence of his nature. 

If, in poUshed countries, the lowest of the people 
are rude and uncivil, it is not merely because they 
are poor and ignorant, but that, being so, they are 
in daily contact with rich and enlightened men. 
The sight of their own hard lot and of their weak- 
ness, which is daily contrasted with the happiness 
and power of some of their fellow-creatures, excites 
in their hearts at the same time the sentiments of 

^ See Appendix, C. 



11 

anger and of fear : the consciousness of their infe- 
riority and of their dependence irritates while it hu- 
miliates them. This state of mind displays itself in 
their manners and language ; they are at once inso- 
lent and servile. The truth of this is easily proved 
by observation ; the people are more rude in aristo- 
^tratic countries than elsewhere; in opulent cities 
than in rural districts. In those places where the 
rich and powerful are assembled together, the weak 
and the indigent feel themselves oppressed by their 
^inferior condition. Unable to perceive a single 
chance of regaining their equality, they give up to 
despair, and allow themselves to fall below the 
dignity of human nature. 

This unfortunate effect of the disparity of con- 
ditions is not observable in savage life : the Indians, 
although they are ignorant and poor, are equal and 
^ free. 

At the period when Europeans first came among 
them, the natives of North America were ignorant 
of the value of riches, and indifferent to the enjoy- 
ments which civilized man procures to himself by 
their means. Nevertheless there was nothing 
coarse in their demeanour ; they practised an ha- 
bitual reserve, and a kind of aristocratic politeness. 

Mild and hospitable when at peace, though mer- 
ciless in war beyond any known degree of human 
ferocity, the Indian would expose himself to die of 
hunger in order to succour the stranger who asked 
admittance by night at the door of his hut,-— 



12 

yet he could tear in pieces with his hands the still 
quivering limbs of his prisoner. The famous re- 
publics of antiquity never gave examples of more 
unshaken courage, more haughty spirits, or more 
intractable love of independence, than were hidden 
V'^ in former times among the wild forests of the New 
World'. The Europeans produced no great im- 
pression when they landed upon the shores of North 
America : their presence engendered neither envy 
nor fear. What influence could they possess over 
such men as we have described ? The Indian could 
live without wants, suffer without complaint, and 
pour out his death-song at the stake*. Like all the 
other members of the great human family, these 
savages believed in the existence of a better world, 
and adored, under different names, God, the creator 
of the universe. Their notions on the great intel- 

' We learn from President Jefferson's ^ Notes upon Virginia/ 
p. 148, that among the Iroquois, when attacked by a superior force, 
aged men refused to fly, or to survive the destruction of their 
country ; and they braved death like the ancient Romans when 
their capital was sacked by the Gauls. Further on, p. 150, he tells 
us that there is no example of an Indian, who, having fallen into 
the hands of his enemies, begged for his life ; on the contrary, 
the captive sought to obtain death at the hands of his conquerors 
by the use of insult and provocation. 

2 See 'Histoire de la Louisiane', by Lepage Dupratz; Charlevoix, 

* Histoire de la Nouvelle France ;* * Lettres du Rev. G. Hecwelder ;' 

* Transactions of the American Philosophical Society,' v. 1.; 
Jefferson's 'Notes on Virginia,' p. 135-190. What is said by 
Jefferson is of especial weight, on account of the personal merit 
of the writer, of his peculiar position, and of the matter-of-fact 
age in which he lived. 



13 

v^lectual truths were in general simple and philoso- 
phical*. 
i"^ Although we have here traced the character of a 
I primitive people, yet it cannot be doubted that an- 
■ other people, more civilized and more advanced in 
I all respects, had preceded it in the same regions. 
An obscure tradition which prevailed among the 
Indians, to the north of the Atlantic, informs us that 
these very tribes formerly dwelt on the west side of 
the Mississippi. Along the banks of the Ohio, and 
' throughout the central valley, there are frequently 
found, at this day, tumuli raised by the hands of 
men. On exploring these heaps of earth to their 
centre, it is usual to meet with human bones, strange 
instruments, arms and utensils of all kinds, made 
\ of a metal, or destined for purposes, unknown to 
the present race. 

The Indians of our time are unable to give any 
information relative to the history of this unknown 
people. Neither did those who lived4hree hundred 
years ago, when America was first discovered, leave 
any accounts from which even an hypothesis could 
be formed. Tradition, — that perishable, yet ever- 
renewed monument of the pristine world, — throws 
no light upon the subject. It is an undoubted fact, 
however, that in this part of the globe thousands 
of our fellow-beings had lived. When they came 
hither, what was their origin, their destiny, their 
history, and how they perished, no one can telL 

» See Appendix, D. 



14 

How strange does it appear that nations have 
existed, and afterwards so completely disappeared 
^ from the earth that the remembrance of their very 
names is effaced : their languages are lost ; their 
glory is vanished like a sound without an echo ; 
but perhaps there is not one which has not left 
behind it a tomb in memory of its passage. The 
most durable monument of human labour is that 
which recalls the wretchedness and nothingness of 
man. 

Although the vast country which we have been 
describing was inhabited by many indigenous tribes, 
it may justly be said at the time of its discovery by 
Europeans to have formed one great desert. The 
Indians occupied, without possessing it. It is by 
agricultural labour that man appropriates the soil, 
and the early inhabitants of North America lived by 
the produce of the chase. Their implacable preju- 
dices, their uncontrolled passions, their vices, and 
still more perhaps their savage virtues, consigned 
them to inevitable destruction. The ruin of these 
nations began from the day when Europeans landed 
,t)n their shores : it has proceeded ever since, and 
we are now witnessing the completion of it. They 
seem to have been placed by Providence amidst 
the riches of the New World to enjoy them for a 
season, and then surrender them. Those coasts, 
so admirably adapted for commerce and industry ; 
those wide and deep rivers ; that inexhaustible val- 
ley of the Mississippi ; the whole continent, in short, 



15 

seemed prepared to be the abode of a great nation, 

^ yet unborn. 

/ In that land the great experiment was to be made 

j by civiUzed man, of thé attempt to construct society 

j upon a new basis ; and it was there, for the first 

-( time, that theories hitherto unknown, or deemed 

7 impracticable, were to exhibit a spectacle for which 

* the world had not been prepared by the history of 

\ the past. 



16 



CHAPTER IL 

ORIGIN OF THE ANGLO-AMERICANS, AND ITS IM- 
PORTANCE IN RELATION TO THEIR FUTURE CON- 
DITION. 

Utility of knowing the origin of nations in order to understand 
their social condition and their laws. — America the only country 
in which the starting-point of a great people has been clearly 
observable. — In what respects all who emigrated to British Ame- 
rica were similar. — In what they difFered.-^Remark applicable 
to all the Europeans who established themselves on the shores 
of the New World. — Colonization of Virginia. — Colonization of 
New England. — Original character of the first inhabitants of 
New England. — Their arrival. — Their first laws. — Their social 
contract. — Penal code borrowed from the Hebrew legislation. — 
Religious fervour. — Republican spirit. — Intimate union of the 
spirit of religion with the spirit of liberty. 

After the birth of a human being his early years 
are obscurely spent in the toils or pleasures of 
childhood. As he grows up the world receives 
him, when his manhood begins, and he enters into 
contact with his fellows. He is then studied for 
the first time, and it is imagined that the germ 
of the vices and the virtues of his maturer years 
is then formed. 

This, if I am not mistaken, is a great error. 
We must begin higher up ; we must watch the 
infant in his mother's arms; we must see the first 



17 

images which the external world casts upon the 
dark mirror of his mind ; the first occurrences which 
he witnesses ; we must hear the first words which 
^^syaken the sleeping powers of thought, and stand 
(by his earliest efforts, if we w^ould understand the j 
^prejudices, the habits, and the passions which will | 
Lrule his life. The entire man is, so to speak, to be \ 
seen in the cradle of the child. ^^^..^^^-^ 

The growth of nations presents something ana- g 
logons to this : they all bear some marks of theim 
origin ; and the circumstances which accompanied' 
their birth and contributed to their rise affect the 
whole term of their being. 

If we were able to go back to the elements of 
states, and to examine the oldest monuments of 
their history, I doubt not that we should discover 
the primal cause of the prejudices, the habits, 
the ruling passions, and, in short, of all that con- 
stitutes what is called the national character : we 
should then find the explanation of certain cus- 
toms which now seem at variance with the pre- 
vailing manners ; of such laws as conflict with 
established principles ; and of such incoherent opi- 
nions as are here and there to be met with in so- 
ciety, like those fragments of broken chains which 
we sometimes see hanging from the vault of an 
edifice, and supporting nothing. This might ex- 
plain the destinies of certain nations which seem 
borne on by an unknown force to ends of which 
they themselves are ignorant. But hitherto facts 

VOL. I. c 



18 

have been wanting to researches of this kind : the 
spirit of inquiry has only come upon communities 
in their latter days ; and when they at length con- 
templated their origin, time had already obscured 
it, or ignorance and pride adorned it with truth- 
concealing fables. 

America is the only country in which it has been 
possible to witness the natural and tranquil growth 
of society, and where the influence exercised on the 
future condition of states by their origin is clearly 
distinguishable. 

At the period when the peoples of Europe landed 
in the New World their national characteristics 
f- were already completely formed ; each of them 
had a physiognomy of its own ; and as they had 
already attained that stage of civilization at which 
men are led to study themselves, they have trans- 
mitted to us a faithful picture of their opinions, 
their manners, and their laws. The men of the 
sixteenth century are almost as well known to us 
as our contemporaries. America consequently 
exhibits in the broad light of day the phsenomena 
which the ignorance or rudeness of earlier ages 
conceals from our researches. Near enough to 
the time when the states of America were founded 
to be accurately acquainted with their elements, 
and sufficiently removed from that period to judge 
of some of their results, the men of our own day 
seem destined to see further than their predecessors 
into the series of human events. Providence has 




19 

given us a torch which our forefathers did not 
possess, and has allowed us to discern fundamental 
causes in the history of the world which the ob- 
scurity of the past concealed from them. 

If we carefully examine the social and political 
state of America after having studied its history, 
w^e shall remain perfectly convinced that not an 
opinion, not a custom, not a law, I may even say 
y not an event, is upon record which the origin of 
that people will not explain. The readers of this 
book will find the germ of all that is to follow in 
the present chapter, and the key to almost the 
whole work. 

The emigrants who came at different periods to, 
occupy the territory now covered by the American 
Union, differed from each other in many respects ; 
their aim was not the same, and they governed 
themselves on different principles. 

These men had, however, certain features in com- 
mon, and they were all placed in an analogous situa- 
tion. The tie of language is perhaps the strongest 
and the most durable that can unite mankind. All 
V the emigrants spoke the same tongue ; they were 
all offsets from the same people. Born in a coun- 
try which had been agitated for centuries by the 
struggles of faction, and in which all parties had 
been obhged in their turn to place themselves 
under the protection of the laws, their political 
education had;- been perfected in this rude school, 
and they were more conversant with the notions 

c 2 



20 

of right, and the principles of true freedom, than 
"^^ the greater part of their European contempora- 
ries. At the period of the first emigrations, the 
parish system, that fruitful germ of free institutions, 
was deeply rooted in the habits of the English ; and 
^^ith it the doctrine of the sovereignty of the people 
had been introduced into the bosom of the mon- 
archy of the House of Tudor. 

The religious quarrels which have agitated the 
Christian world were then rife. England had 
plunged into the new order of things with head- 
long vehemence. The character of its inhabitants, 
which had always been sedate and reflective, became 
argumentative and austere. General information had 
been increased by intellectual debate, and the mind 
had received a deeper cultivation. Whilst religion 
was the topic of discussion, the morals of the people 
were reformed^ All these national features are more 
or less discoverable in the physiognomy of those 
adventurers who came to seek a new home on the 
opposite shores of the Atlantic. 

Another remark, to which we shall hereafter 
have occasion to recur, is applicable not only to the 
English, but to the French, the Spaniards, and all 
Jhe Europeans who successively established them- 
selves in the New World. All these European 
x/colonies contained the elements, if not the develop- 
ment, of a complete democracy. Two causes led 
to this resultr^ It may safely be advanced, that on 
leaving the mother-country the emigrants had in 



21 

general no notion of superiority over one another. 
/The happy and the powerful do not go into exile, 
iand there are no surer guarantees of equality among 
men than poverty and misfortune . It happened , how- 
ever, on several occasions that persons of rank were 
driven to America by political and religious quar- 
rels, léaws were made to establish a gradation of 
ranks -L Wt it was soon found that the soil of 
America was opposed to a territorial aristocracy. 
To bring that refractory land into cultivation, the 
constant and interested exertions of the owner 
himself were necessary ; and when the ground was 
prepared, its produce was found to be insufficient 
to enrich a master and a farmer at the same time. 
The land was then naturally broken up into small 
portions, which the proprietor cultivated for him- 
self. Land is the basis of an aristocracy, which 
clings to the soil that supports it ; for it is not by 
privileges alone, nor by birth, but by landed property 
handed down from generation to generation, that 
an aristocracy is constituted. A nation may pre- 
sent immense fortunes and extreme wretchedness, 
but unless those fortunes are territorial there is no 
aristocracy, but simply the class of the rich and 
that of the poor. 

All the British colonies had then a great degree 
of similarity at the epoch of their settlement. All 
of them, from their first beginning, seemed destined 
to witness the growth, not of the aristocratic liberty 
of their mother-country, but of that freedom of the 



22 

middle and lower orders of which the history of the 
world had as yet furnished no complete example. 

In this general uniformity several striking dif- 
ferences were, however, discernible, which it is ne- 
cessary to point out. Two branches may be distin- 
guished in the Anglo-American family which have 
hitherto grown up without entirely commingling ; 
the one in the South, the other in the North. 

A,] Virginia received the first English colony; the 
emigrants took possession of it in 1607. The idea 
that mines of gold and silver are the sources of na- 
tional wealth was at that time singularly prevalent 
in Europe ; a fatal delusion, which has done more 
to impoverish the nations which adopted it, and 
has cost more lives in America, than the united 
influence of war and bad laws. The men sent to 
Virginia * were seekers of gold, adventurers with- 
out resources and without character, whose tur- 
bulent and restless spirit endangered the infant co- 

ilony^ and rendered its progress uncertain. The 
artisans and agriculturists arrived afterwards; and 
although they were a more moral and orderly race 

^ Tlie charter granted by the Crown of England in 1609 stipu- 
lated, amongst other conditions, that the adventurers should pay- 
to the Crovra a fifth of the produce of all gold and silver mines. 
See Marshall's 'Life of Washington,* vol. i. p. 18-66. 

^ A large portion of the adventurers, says Stith, (History of Vir- 
ginia,) were unprincipled young men of family, whom their pa- 
rents were glad to ship off, discharged servants, fraudulent bank- 
rupts, or debauchees ; and others of the same class, people more 
apt to pillage and destroy than to assist the settlement, were the 
seditious chiefs who easily led this band into every kind of ex- 



23 

of men, they were in nowise above the level of the 
inferior classes in England \ No lofty conceptions, 
no intellectual system directed the foundation of 
these new settlements. The colony was scarcely 
established when slavery was introduced ^, and this 
was the main circumstance which has exercised so 
prodigious an influence on the character, the laws, 
and all the future prospects of the South. 

Slavery, as we shall afterwards show, dishonours 
labour ; it introduces idleness into society, and with 
idleness, ignorance and pride, luxury and distress. 
It enervates the powers of the mind, and benumbs 
the activity of man. The influence of slavery, united 
to the English character, explains the manners and 
the social condition of the Southern States. 
/^^T^In the North, the same English foundation was 
^'Miiodified by the most opposite shades of character ; 
and here I may be allowed to enter into some de- 
tails. The tv/o or three main ideas which consti- 
tute the basis of the social theory of the United 
States were first combined in the Northern English 

travagance and excess. See for the history of Virginia the fol- 
lowing works : — 

'History of Virginia, from the first Settlements in the year 
1624/ by Smith. 

'History of Virginia,' by William Stith. 

'History of Virginia, from the earliest period,' by Beverley. 

1 It was not till some time later that a certain number of rich 
English capitalists came to fix themselves in the colony. 

2 Slavery was introduced about the year 1620 by a Dutch 
vessel which landed twenty negroes on the banks of the river 
James. See Chalmer. 



24 

colonies, more generally denominated the States of 
New England ^ The principles of New England 
spread at first to the neighbouring states ; they then 
passed successively to the more distant ones ; and 
at length they imbued the whole Confederation. 
They now extend their influence beyond its limits 
over the whole American world. The civilization 
of New England has been like a beacon lit upon a 
hill, which after it has diffused its warmth around, 
tinges the distant horizon with its glow. 

The foundation of New England was a novel 
spectacle, and all the circumstances attending it 
were singular and original. The large majority of 
colonies have been first inhabited either by men 
without education and without resources, driven 
by their poverty and their misconduct from the 
land which gave them birth, or by speculators and 
adventurers greedy of gain. Some settlements can- 
not even boast so honourable an origin ; St. Do- 
mingo was founded by buccaneers ; and, at the pre- 
sent day, the criminal courts of England supply the 
population of Australia. 

The settlers who established themselves on the 

shores of New England all belonged to the more 

j independent classes of their native country. Their 

^ union on the soil of America at once presented the 

* The States of New England are those situated to the east of 
the Hudson ; they are now six in number : 1 . Connecticut ; 
2. Rhode Island ; 3. Massachussetts ; 4. Vermont ; 5. New 
Hampshire; 6. Maine. 



25 

singular phœnomenon of a society containing nei- 
ther lords nor common people, neither rich nor 
poor. These men possessed, in proportion to their 
^mnmber, a greater mass of intelligence than is to 
Vbe found in any European nation of our own time. 
All, without a single exception, had received a good 
education, and many of them were known in Eu- 
rope for their talents and their acquirements. The 
other colonies had been founded by adventurers 
without family; the emigrants of New England 
s brought with them the best elements of order and 
7\"niorality, they landed in the desert accompanied 
by their wives and children. But what most espe- 
cially distinguished them was the aim of their un- 
dertaking. They had not been obliged by neces- 
sity to leave their country, the social position they 
abandoned was one to be regretted, and their means 
of subsistence were certain. Nor did they cross 
the Atlantic to improve their situation or to in- 
crease their wealth ; the call which summoned them 
from the comforts of their homes was purely inte^ 
lectual j-ttftd^-ift-fecing the inevitable suffering 
^ exile ^heir object was the triumph ©fan. idea. 
f The emigrantS7-~or, as "they deservedly styled 
( themselves, the Pilgrims, belonged to that English* 
\ sect, the austerity of whose principles had acquired 
-s for them the name of Puritans. Puritanism was not 
merely a religious doctrine, but it corresponded in 
many points with the most absolute democratic and 
I republican theories. It was this tendency which 



1^ 




26 

had aroused its most dangerous adversaries. Perse- 
cuted by the Government of the mother-country, 
and disgusted by the habits of a society opposed to 
the rigour of their own principles, the Puritans went 
forth to seek some rude and unfrequented part of 
the world, where they could live according to their 
own opinions, and worship God in freedom. 

A few quotations will throw more light upon the 
spirit of these pious adventurers than all we can 
say of them. Nathaniel Morton^, the historian of 
the first years of the settlement, thus opens his 
subject : 

'' Gentle Reader, 

'^ I have for some length of time looked upon it 
as a duty incumbent, especially on the immediate 
successors of those that have had so large experi- 
ence of those many memorable and signall demon- 
strations of God's goodness, viz., the first begin- 
ners of this Plantation in New England, to commit 
to writing his gracious dispensations on that be- 
half; having so many inducements thereunto, not 
onely otherwise, but so plentifully in the Sacred 
Scriptures : that so, what we have seen, and what 
our fathers have told us, (Psalm Ixxviii. 3, 4,) we 
may not hide from oar children, shewing to the ge- 
nerations to come the praises of the Lord; that 
especially the seed of Abraham his servant, and the 
children of Jacob his chosen (Psalm cv. .5, 6,) may 

1 'New England' Î5 Memorial/ p. 13. Boston, 1826. See also 
* Hutchinson's History,' vol. ii. p. 440. 



27 

remember his marvellous works in the beginning 
and progress of the planting of New England, his 
wonders and the judgements of his mouth ; how that 
God brought a vine into this wilderness ; that He 
cast out the heathen, and planted it; that He made 
room for it and caused it to take deep root ; and it 
filled the land (Psalm Ixxx. 8, 9.)- And not onely 
so, but also that He hath guided his people by his 
strength to his holy habitation, and planted them in 
the mountain of his inheritance in respect of pre- 
cious Gospel-enjoyments : and that as especially God 
may have the glory of all unto whom it is most due ; 
so also some rays of glory may reach the names of 
those blessed Saints, that were the main instruments 
and the beginning of this happy enterprize." 

It is impossible to read this opening paragraph 
without an involuntary feeling of religious awe ; it 
breathes the very savour of Gospel antiquity. The 
sincerity of the author heightens his power of lan- 
guage. The band which to his eyes was a mere 
party of adventurers gone forth to seek their for- 
tune beyond seas, appears to the reader as the germ 
of a great nation wafted by Providence to a predes- 
tined shore. 

The author thus continues his narrative of the 
departure of the first pilgrims. 

*' So they left that goodly and pleasant city of 
Ley den \ which had been their resting-place for 

* The emigrants were, for the most part, godly Christians from 
the North of England, who had quitted their native country be- 



28 

above eleven years ; but they knew that they were 
pilgrims and strangers here below, and looked not 
much on these things, but lifted up their eyes to 
Heaven, their dearest country, where God hath 
prepared for them a city (Heb. xi. 16.), and therein 
quieted their spirits. When they came to Delfs- 
Haven they found the ship and all things ready ; 
and such of their friends as could not come with 
them, followed after them, and sundry came from 
Amsterdam to see them shipt, and to take their 
leaves of them. One night was spent with little 
sleep with the most, but with friendly entertain- 
ment and Christian discourse, and other real ex- 
pressions of true Christian love. The next day 
they went on board, and their friends with them, 
where truly doleful was the sight of that sad and 
mournful parting, to hear what sighs and sobs and 
prayers did sound amongst them ; what tears did 
gush from every eye, and pithy speeches pierced 
each other's heart, that sundry of the Dutch stran- 
gers that stood on the Key as spectators could not 
refrain from tears. But the tide (which stays for 

cause they were " studious of reformation, and entered into covenant 
to walk with one another according to the primitive pattern of the 
word of God." They emigrated to Holland, and settled in the city 
of Ley den in 1 610, where they abode, being lovingly respected by 
the Dutch, for many years : they left it in 1620 for several rea- 
sons, the last of which was that their posterity would in a few 
generations become Dutch, and so lose their interest in the English 
nation ; they being desirous rather to enlarge His Majesty's domi- 
nions, and to live under their natural prince. — Translator s Note. 



29 

no man) calling them away, that were thus loth to 
depart, their Reverend Pastor falling down on his 
knees, and they all with him, with watery cheeks 
commended them with most fervent prayers unto 
the Lord and his blessing ; and then with mutual 
embraces and many tears, they took their leaves 
one of another, which proved to be the last leave 
to many of them." 

The emigrants were about 150 in number, in- 
cluding the women and the children. Their object 
was to plant a colony on the shores of the Hudson ; 
but after having been driven about for some time 
in the Atlantic Ocean, they were forced to land on 
that arid coast of New England which is now the 
site of the town of Plymouth. The rock is still 
shown on which the pilgrims disembarked \ 

'* But before we pass on," continues our historian, 
*'let the reader with me make a pause and seriously 
consider this poor people's present condition, the 
more to be raised up to admiration of God's good- 
ness towards them in their preservation : for being 
now passed the vast ocean, and a sea of troubles 
before them in expectation, they had now no friends 

* This rock is become an object of veneration in the United 
States. I have seen bits of it carefully preserved in several towns 
of the Union. Does not this sufficiently show how entirely all 
human power and greatness is in the soul of man ? Here is a 
stone which the feet of a few outcasts pressed for an instant, and 
this stone becomes famous ; it is treasured by a great nation, its 
very dust is shared as a relic : and what is become of the gate- 
ways of a thousand palaces ? 



30 

to welcome them, no inns to entertain or refresh 
them, no houses, or much less towns to repair unto 
to seek for succour: and for the season it was win- 
ter, and they that know the winters of the country, 
know them to be sharp and violent, subject to cruel 
and fierce storms, dangerous to travel to known 
places, much more to search unknown coasts. Be- 
sides, what could they see but a hideous and deso- 
late wilderness, full of wilde beasts, and wilde men? 
and what multitudes of them there were, they then 
knew not : for wliich way soever they turned their 
eyes (save upward to Heaven) they could have but 
little solace or content in respect of any outw^ard 
object ; for summer being ended, all things stand 
in appearance with a weather-beaten face, and the 
whole country full of woods and thickets, repre- 
sented a wild and savage hew ; if they looked behind 
them, there was tlie mighty ocean which they had 
passed, and was now as a main bar or gulph to se- 
parate them from all the civil parts of the world." 

It must not be imagined that the piety of the 
Puritans was of a merely speculative kind, or that it 
took no cognizance of the course of worldly affairs. 
Puritanism, as I have already remarked, was scarcely 
less a political than a religious doctrine. No sooner 
had the emigrants landed on the barren coast, de- 
scribed by Nathaniel Morton, than it was their first 
care to constitute a society, by passing the follow- 
ing Act : 

*'In the name of God, Amen. We, whose names 



V 



31 

are underwritten, the loyal subjects of our dread 
Sovereign Lord King James, &c. &c., Having un-- 
dertaken for the glory of God, and advancement of 
the Christian Faith, and the honour of our King 
and country, a voyage to plant the first colony in 
the northern parts of Virginia ; Do by these presents 
solemnly and mutually, in the presence of God and 
one another, covenant and combine ourselves to- 
gether into a civil body politick, for our better or- 
dering and preservation, and furtherance of the 
ends aforesaid : and by virtue hereof do enact, con- 
stitute and frame such just and equal laws, ordi- 
nances, acts, constitutions, and officers, from time 
to time, as shall be thought most meet and conve- 
nient for the general good of the Colony : unto which 
we promise all due submission and obedience," &c/ 
This happened in 1620, and from that time for- 
wards the emigration went on. The religious and 
political passions which ravaged the British Empire 
during the whole reign of Charles L, drove fresh 
crowds of sectarians every year to the shores of 
America. In England the stronghold of Puritanism 
was in the middle classes, and it was from the 
Cmiddle classes that the majority of the emigrants 
I came. The population of New England increased 

* Tlie emigrants who founded the state of Rhode Island in 1 638, 
those who landed at New Haven in 1637, the first settlers in Con- 
necticut in 1639, and the founders of Providence in 1640^ began 
in like manner by drawing up a social contract, which was acceded 
to byall the interested parties. See 'Pitkin's History,' pp,42 and 47. 



c 



32 

rapidly ; and whilst the hierarchy of rank despoti- 
cally classed the inhabitants of the mother-country, 
the colony continued to present the novel spectacle 
.of a community homogeneous in all its parts. A 
democracy, more perfect than any which antiquity 
'had dreamt of, started in full size and panoply from 
[Ûpd midst of an ancient feudal society. 

/ The English Government was not dissatisfied with 
an emigration which removed the elements of fresh 
discord and of further revolutions. On the con- 
trary, everything was done to encourage it, and great 
exertions were made to mitigate the hardships of 
those who sought a shelter from the rigour of their 
country's laws on the soil of America. It seemed as 
if New England was a region given up to the dreams 
of fancy, and the unrestrained experiments of inno- 
vators. 

The English colonies (and this is one of the main 
causes of their prosperity,) have always enjoyed more 
internal freedom and more political independence 
than the colonies of other nations ; but this principle 
of liberty was nowhere more extensively applied 
than in the States of New England. 

It was generally allowed at that period that the 
territories of the New World belonged to that Eu- 
ropean nation which had been the first to discover 
them. Nearly the whole coast of North America 

\/thus became a British possession towards the end 
of the sixteenth century. The means used by the 
English Government to people these new domains 



(2f 



were of several kmds; the King sometimes appointed 
a governor of his own choice, who ruled a portion 
of the New World in the name and under the im- 
mediate orders of the Crown ^ ; this is the colonial 
system adopted by the other countries of Europe. 
f i^ Sometimes grants of certain tracts were made by 
the Crown to an individual or to a company*, in 
which case all the civil and political power fell into 
the hands of one or more persons, who, under the 
inspection and control of the Crown, sold the lands 
and governed the inhabitants. "Lastly, a third 
system consisted in allowing a certain number of 
emigrants to constitute a political society under the 
protection of the mother- country, and to govern 
themselves in whatever was not contrary to her laws. 
This mode of colonization, so remarkably favour- 
able to liberty, was only adopted in New England*. 

' This was the case in the State of New York. 

® Maryland, the Carolinas, Pennsylvania, and New Jersey were 
in this situation. See Pitkin's History, vol. i. p. 11—31. 

3 See the v/ork entitled ' Historical Collection of Slate Papers 
and other authentic Documents intended as materials for an History 
of the United States of America, hy Ehenezer Hasard. Philadelphia, 
1792,* for a great number of documents relating to the commence- 
ment of the colonies, which are valuable from their contents and 
their authenticity : amongst them are the various charters granted 
by the King of England, and the first acts of the local governments. 

See also the analysis of all these charters given by Mr. Story, 
Judge of the Supreme Court of the United States, in the Intro- 
duction to his Commentary on the Constitution of the United States. 
It results fi'om these documents thatthe principles of representative, 
government and the external forms of political liberty were intro- 
duced into all the colonies at their origin. These principles v/ere 
VOL. I. D 




34 

In 1628' a charter of this kind was granted by 
Charles I. to the emigrants who went to form the 
colony of Massachusetts. But, in general, charters 
were not given to the colonies of New England till 
they had acquired a certain existence. Plymouth, 
Providence, New Haven, the State of Connecticut, 
and that of Rhode Island* were founded without 
the cooperation and almost without the knowledge 
of the mother-country. The new settlers did not 
derive their incorporation from the seat of the 
empire, although they did not deny its supremacy; 
they constituted a society of their own accord, and 
it was not till thirty or forty years afterwards, under 
Charles II., that their existence was legally recog- 
nised by a royal charter. 

This frequently renders it difficult to detect the 
ink which connected the emigrants with the land 
of their forefathers, in studying the earliest histo- 
^ rical and legislative records of New England. They 
I exercised the rights of sovereignty ; they named 
I their magistrates, concluded peace or declared war, 
i made police regulations, and enacted laws as if their 
\ allegiance was due only to God^ Nothing can be 

more fully acted upon in the North than in the South, but they 
existed everywhere. 

' See Pitkin's History, p. 35. See the History of the Colony 
of Massachusetts Bay, by Hutchinson, vol. i. p. 9. 

" See Pitkin's History, pp. 42. 47. 

' The inhabitants of Massachusetts had deviated from the 
forms which are preserved in the criminal and civil procedure of 
England; in 1650 the decrees of justice were not yet headed by 
the royal style. See Hutchinson, vol. i. p. 452. 



35 

more curious, and at the same time more instructive, 
than the legislation of that period ; it is there that the 
solution of the great social problem which the Uni- 
ted States now present to the world is to be found. 

Amongst these documents we shall notice, as 
especially characteristic, the code of laws promul- 
gated by the little State of Connecticut in 1650\ 

The legislators of Connecticut* begin with the 
penal laws, and, strange to say, they borrow their 
provisions from the text of Holy Writ. 

" Whosoever shall worship any other God than 
the Lord," says the preamble of the Code, *' shall 
surely be put to death." This is followed by ten or 
twelve enactments of the same kind, copied ver- 
batim from the books of Exodus, Leviticus, and 
Deuteronomy. Blasphemy, sorcery, adultery ^ and 
rape were punished with death ; an outrage offered 
by a son to his parents was to be expiated by the 
same penalty. The legislation of a rude and half- 

J Code of 1650, p. 28. Hartford, 1830. 

2 See also in Hutchinson's History, vol. i. pp. 435. 456, the 
analysis of the penal code adopted in 1648 by the colony of Mas- 
sachusetts : this code is drawn up on the same principles as that 
of Connecticut. 

3 Adultery was also punished with death by the law of Mas- 
sachusetts; and Hutchinson, vol. i. p. 441., says that several 
persons actually suffered for this crime. He quotes a curious 
anecdote on this subject, which occurred in the year 1663. A 
married woman had had criminal intercourse with a young man; 
her husband died, and she married the lover. Several years had 
elapsed, when the public began to suspect the previous intercourse 
of this couple : they were thrown into prison, put upon trial, and 
very narrowly escaped capital punishment. 

d2 



36 

civilized people was thus applied to an enlightened 
and moral community. The consequence was that 
the punishment of death was never more frequently 
prescribed by the statute, and never more rarely 
enforced towards the guilty. 

The chief care of the legislators, in this body of 
penal laws, was the maintenance of orderly conduct 
and good morals in the community : they constantly 
invaded the domain of conscience, and there was 
scarcely a sin which was not subject to magisterial 
censure. The reader is aw^are of the rigour with 
which these laws punished rape and adultery ; in- 
tercourse between unmarried persons was likewise 
severely repressed. The judge was empowered to 
inflict a pecuniary penalty, a whipping, or mar- 
riage \ on the misdemeanants ; and if the records 
of the old courts of New Haven may be believed, 
prosecutions of this kind were not unfrequent. We 
find a sentence, bearing date the 1st of May 1660, 
inflicting a fine and a reprimand on a young woman 
who was accused of using improper language, and of 
allowing herself to be kissed^ The Code of 1650 
abounds in preventive measures. It punishes idle- 

1 Code of 1650, p. 48. It seems sometimes to have happened 
that the judges superadded these punishments to each other, as 
is seen in a sentence pronounced in 1643, (p. 114, New Haven 
Antiquities,) by which Margaret Bedford, convicted of loose con- 
duct, was condemned to be whipt, and afterwards to marry Ni- 
colas Jemmings her accomplice. 

2 New Haven Antiquities, p. 104. See also Hutchinson's Hi- 
story for several causes equally extraordinary. 



1/ 



a; 

ness and drunkenness with severity'. Innkeepers 
are forbidden to furnish more than a certain quan- 
tity of liquor to each consumer ; and simple lying, 
whenever it may be injurious*, is checked by a 
fine or a flogging. In other places, the legislator, 
entirely forgetting the great principles of religious 
toleration which he had himself upheld in Eu- 
rope, renders attendance on divine service compul- 
sory% and goes so far as to visit with severe pu- 
nishment ^ and even with death, the Christians who 
chose to worship God according to a ritual differing 
from his own*. Sometimes indeed the zeal of his 
enactments induces him to descend to the most fri- 
volous particulars : thus a law is to be found in 
the same Code which prohibits the use of tobacco*^. 
It must not be forgotten that these fantastical and 

' Code of 1650, pp. 50. 57. « Ibid., p. 64. ^ Ihid., p. 44. 

^ This was not peculiar to Connecticut. See, for instance, the 
law which, on the 13th of September 1644, banished the Ana- 
baptists from the State of Massachusetts. (Historical Collection 
of State Papers, vol. i. p. 538.) See also the law against the 
Quakers, passed on the 14th of October 1656. "Whereas," 
says the preamble, " an accursed race of heretics called Quakers 
has sprung up," &c. The clauses of the statute inflict a heavy 
fine on all captains of ships who should import Quakers into the 
country. The Quakers who may be found there shall be whipt 
and imprisoned with hard labour. Those members of the sect 
who should defend their opinions shall be first fined, then impri- 
soned, and finally driven out of the province. — Historical Col- 
lection of State Papers, vol. i. p. 630. 

5 By the penal law of Massachusetts, any Catholic priest who 
should set foot in the colony after having been once driven out of 
it was liable to capital punishment. 

« Code of 1650, p. 96. 



38 

vexatious laws were not imposed by authority, but 
that they were freely voted by all the persons in- 
terested, and that the manners of the community 
were even more austere and more puritanical than 
the laws. In 1649 a solemn association was formed 
in Boston to check the worldly luxury of long hair'. 
These errors are no doubt discreditable to the 
human reason; they attest the inferiority of our 
nature, which is mcapable of laying firm hold upon 
what is true and just, and is often reduced to the 
alternative of two excesses. In strict connexion 
with this penal legislation, which bears such strik- 
ing marks of a narrow sectarian spirit, and of those 
religious passions which had been warmed by per- 
secution and were still fermenting among the peo- 
ple, a body of political laws is to be found, which, 
though written two hundred years ago, is still 
ahead of the liberties of our age. 

The general principles which are the ground- 
work of modern constitutions, — principles which 
were imperfectly known in Europe, and not com- 
pletely triumphant even in Great Britain, in the 
seventeenth century, — were all recognised and de- 
J:ermined by the laws of New England : the interven- 
/ tion of the people in public affairs, the free voting 
'- of taxes, the responsibility of authorities, personal 
liberty, and trial by jury, were all positively esta- 
blished without discussion. 

From these fruitful principles consequences have 

' New England's Memorial, p. 316. See Appendix, E. 



39 

been derived and applications have been made such 
as no nation in Europe has yet ventured to attempt. 

In Connecticut the electoral body consisted, from 
its origin, of the whole number of citizens ; and 
this is readily to be understood ^ when we recollect 
that this people enjoyed an almost perfect equality 
of fortune, and a still greater uniformity of opi- 
nions*. In Connecticut, at this period, all the exe- 
cutive functionaries were elected, including the Go- 
vernor of the State'. The citizens above the age of 
sixteen were obliged to bear arms ; they formed a 
national militia, which appointed its own officers, 
and was to hold itself at all times in readiness to 
march for the defence of the country* . 

In the laws of Connecticut, as well as in all 
those of New England, we find the germ and gra- 
dual development of that township independence 
which is the life and mainspring of American li- 
berty at the present day. The political existence 
of the majority of the nations of Europe commenced 
in the superior ranks of society, and was gradually 
and imperfectly communicated to the different mem- 
bers of the social body. In America, on the other 
hand, it may be said that the township was organized 

» Constitution of 1638, p. 17. 

2 In 1641 the General Assembly of Rhode Island unanimously 
declared that the government of the State was a democracy, and 
that the power was vested in the body of free citizens, who alone 
had the right to make the laws and to watch their execution. 
Code of 1650, p. 70. 

3 Pitkin's History, p. 47. * Constitution of 1638, p. 12. 



40 

^ before the county, the county before the State, the 
State before the Union. 

In New England, townships were completely and 
definitively constituted as early as 1650. The in- 
dependence of the township was the nucleus round 
which the local interests, passions, rights, and 
duties collected and clung. It gave scope to the 
activity of a real political life, most tlioroughly de- 
mocratic and republican. The colonies still recog- 
nised the supremacy of the mother-country ; mon- 
archy was still the law of the State ; but the repub- 
lic was already established in every township. 

The towns named their own magistrates of every 
kind, rated themselves, and levied their own taxes'. 
In the parish of New England the law of representa- 
tion was not adopted, but the affairs of the commu- 
nity were discussed, as at Athens, in the market- 
place, by a general assembly of the citizens. 

In studying the laws which were promulgated at 
this first era of the American republics, it is im- 
possible not to be struck by the remarkable acquain- 
tance with the science of government, and the ad- 
vanced theory of legislation which they display. 
The ideas there formed of the duties of society 
towards its members are evidently much loftier and 
more comprehensive than those of the European 
legislators at that time : obligations were there im- 
posed which were elsewhere slighted. In the States 
of New England, from the first, the condition of 

1 Code of 1650, p. 80. 



41 

the poor was provided for ^ ; strict measures were 
taken for the maintenance of roads, and surveyors 
were appointed to attend to them* ; registers were 
estabUshed in every parish, in which the results of 
pubUc deUberations, and the births, deaths, and mar- 
riages of the citizens were entered^ ; clerks were di- 
rected to keep these registers ^; officers were charged 
with the administration of vacant inheritances, and 
with the arbitration of litigated landmarks ; and 
many others were created whose chief functions 
were the maintenance of public order in the com^ 
munity\ The law enters into a thousand useful 
provisions for a number of social wants which are 
at present very inadequately felt in France. 

But it is by the attention it pays to Public Edu- 
yf cation that the original character of American 
civilization is at once placed in the clearest light. 
** It being," says the law, "one chief project of 
Satan to keep men from the knowledge of the Scrip- 
ture by persuading from the use of tongues, to 
the end that learning may not be buried in the 
graves of our forefathers, in church and common- 
wealth, the Lord assisting our endeavours, ^ " 

Here follow clauses establishing schools in every 
township, and obliging the inhabitants, under pain 
of heavy fines, to support them. Schools of a 
superior kind were founded in the same manner 

' Code of 1650, p. 78. 2 /^^-^^^ p, 49^ 

' See Hutchinson's History, vol. i. p. 455. 

* Code of 1650, p. 86. ^ Ibid., p. 40. « Ibid., p. 90. 



42 

in the more populous districts. The municipal 
authorities were bound to enforce the sending of 
children to school by their parents ; they were 
empowered to inflict fines upon all who refused 
compliance ; and in cases of continued resistance 
society assumed the place of the parent, took pos- 
session of the child, and deprived the father of 
those natural rights which he used to so bad a pur- 
pose. The reader will undoubtedly have remarked 
the preamble of these enactments : in America, re- 
ligion is the road to knowledge, and the observance 
of the Divine laws leads man to civil freedom. 

If, after having cast a rapid glance over the state 
of American society in 1650, we turn to the condi- 
tion of Europe, and more especially to that of the 
Continent, at the same period, we cannot fail to be 
struck with astonishment. On the continent of Eu- 
rope, at the beginning of the seventeenth century, 
absolute monarchy had everywhere triumphed over 
the ruins of the oligarchical and feudal liberties of 
the Middle Ages. Never were the notions of right 
more completely confounded than in the midst of 
the splendour and literature of Europe ; never was 
there less political activity among the people ; never 
were the principles of true freedom less widely cir- 
culated ; and at that very time, those principles, 
which were scorned or unknown by the nations of 
Europe, were proclaimed in the deserts of the New 
World, and were accepted as the future creed of a 
great people. The boldest theories of the human 



43 

reason were put into practice by a community so 
humble, that not a statesman condescended to at- 
tend to it ; and a legislation without a precedent 
was produced offhand by the imagination of the 
citizens. In the bosom of this obscure democracy, 
which had as yet brought forth neither generals, 
nor philosophers, nor authors, a man might stand 
up in the face of a free people and pronounce the 
following fine definition of liberty \ 

**Nor would I have you to mistake in the point 
of your own liberty. There is a liberty of corrupt 
nature, which is affected both by men and beasts 
to do what they list ; and this liberty is inconsis- 
tent with authority, impatient of all restraint ; by 
this liberty ' sumus omnes détériores-.' 't is the grand 
enemy of truth and peace, and all the ordinances 
of God are bent against it. But there is a civil, a 
moral, a federal liberty which is the proper end 
and object of authority ; it is a Uberty for that 
only which is just and good : for this liberty you are 
to stand with the hazard of your very lives, and 
whatsoever crosses it, is not authority, but a dis- 
temper thereof. This liberty is maintained in a 
way of subjection to authority ; and the authority 
set over you will, in all administrations for your 

1 Mather's Magnolia Christi Americana, vol. ii. p. 13. This 
speech was made by Winthrop ; he was accused of having com- 
mitted arbitrary actions during his magistracy, but after having 
made the speech of which the above is a fragment, he was acquit- 
ted by acclamation, and from that time forwards he was always 
re-elected governor of the State. See Marshall, vol. i. p. 166. 



44 

good, be quietly submitted unto by all but such as 
have a disposition to shake off the yoke and lose 
their true liberty, by their murmuring at the honour 
and power of authority. " 

The remarks I have made will suffice to display 
the character of Anglo-American civilization in its 
true light. It is the result (and this should be con- 
stantly present to the mind) of two distinct elements, 
which in other places have been in frequent hostility, 
but which in America have been admirably incorpo- 
rated and combined with one another. I allude to 
the spirit of Religion, and the spirit of Liberty. 
V The settlers of New England were at the same 
time ardent sectarians and daring innovators. 
Narrow as the limits of some of their religious 
opinions were, they were entirely free from poli- 
tical prejudices. 

Hence arose two tendencies, distinct but not op- 
posite, which are constantly discernible in the man- 
ners as well as in the laws of the country. 

It might be imagined that men who sacrificed 
their friends, their family, and their native land to 
a religious conviction, were absorbed in the pursuit 
of the intellectual advantages which they purchased 
at so dear a rate. The energy, however, with which 
they strove for the acquirement of wealth, moral 
enjoyment, and the comforts as well as liberties of 
the world, is scarcely inferior to that with which 
they devoted themselves to Heaven. 

Pohtical principles, and all human laws and in- 



45 

stitutions were moulded and altered at their plea- 
sure ; the barriers of the society in which they were 
born were broken down before them ; the old prin- 
ciples which had governed the world for ages were 
no more ; a path without a term, and a field with- 
out an horizon were opened to the exploring and 
ardent curiosity of man : but at the limits of the po- 
litical world he checks his researches, he discreetly 
lays aside the use of his most formidable faculties, 
he no longer consents to doubt or to innovate, but 
carefully abstaining from raising the curtain of the 
sanctuary, he yields with submissive respect to 
truths which he will not discuss. 

Thus in the moral world, everything is classed, 
adapted, decided, and foreseen ; in the political 
world everything is agitated, uncertain, and dis- 
puted : in the one is a passive, though a voluntary, 
obedience ; in the other an independence, scornful 
of experience, and jealous of authority. 

These two tendencies, apparently so discrepant, 
are far from conflicting ; they advance together, 
and mutually support each other. 

Religion perceives that civil liberty affords a 
noble exercise to the faculties of man, and that the 
political world is a field prepared by the Creator 
for the efforts of the intelligence. Contented with 
the freedom and the power which it enjoys in its 
own sphere, and with the place which it occupies, 
the empire of religion is never more surely esta- 
blished than when it reigns in the hearts of men 
unsupported by aught beside its native strength. 



46 



Religion is no less tl>e companion of liberty in 

"^ all its battles and its triumphs ; the cradle of its in- 

/ fancy, and the divine source of its claims.! The safe- 

1 guard of morality is religion, and morality is the best 

security of law, and the surest pledge of freedom'.) 



REASONS OF CERTAIN ANOMALIES WHICH THE LAM^S 
AND CUSTOMS OF THE ANGLO-AMERICANS PRESENT. 

Remains of aristocratic institutions in the midst of a complete 
democracy. — Why ? — Distinction carefully to be drawn be- 
tween what is of Puritanical and what is of English origin. 

The reader is cautioned not to draw too general 
or too absolute an inference from what has been said. 
The social condition, the religion, and the manners 
of,the first emigrants undoubtedly exercised an im- 
mense influence on the destiny of their new coun- 
try. Nevertheless they were not in a situation to 
found a state of things solely dependent on them- 
selves : no man can entirely shake off the influence 
of the past ; and the settlers, intentionally or in- 
voluntarily, mingled habits and notions derived 
from their education and from the traditions of 
their country, with those habits and notions which 
were exclusively their own. To form a judgement 
on the Anglo-Americans of the present day, it is 
therefore necessary to distinguish what is of Puri- 
tanical and what is of English origin. 

Laws and customs are frequently to be met with in 

1 See Appendix, F. 



47, 

the United States which contrast strongly with all 
that surrounds them. These laws seem to be drawn 
up in a spirit contrary to the prevailing tenor of 
the American legislation ; and these customs are 
no less opposed to the tone of society. If the En- 
glish colonies had been founded in an age of dark- 
ness, or if their origin was already lost in the lapse 
of years, the problem would be insoluble. 

I shall quote a single example to illustrate what 
I advance. 

The civil and criminal procedure of the Ameri- 
cans has only two means of action, — committal and 
bail. The first measure taken by the magistrate is 
to exact security from the defendant, or, in case of 
refusal, to incarcerate him : the ground of the 
accusation and the importance of the charges 
against him are then discussed. 

It is evident that a legislation of this kind is 
hostile to the poor man, and favourable only to the 
rich. The poor man has not always a security to 
produce, even in a civil cause ; and if he is obliged 
to wait for justice in prison, he is speedily reduced to 
distress. The wealthy individual, on the contrary, 
always escapes imprisonment in civil causes ; nay, 
more, he may readily elude the punishment which 
awaits him for a delinquency by breaking his bail. 
So that all the penalties of the law are, for him, 
reducible to fines \ Nothing can be more aristo- 

' Crimes no doubt exist for which bail is inadmissible, but they 
are few in number. 



48 

cratic than this system of legislation. Yet in 
America it is the poor who make the law, and 
they usually reserve the greatest social advantages 
to themselves. The explanation of the phsenome- 
non is to be found in England ; the laws of which 
I speak are English', and the Americans have 
retained them, however repugnant they may be to 
the tenor of their legislation and the mass of their 
ideas. 

Next to its habits, the thing which a nation is 
least apt to change is its civil legislation. Civil 
laws are only familiarly known to legal men, w^iose 
direct interest it is to maintain them as they are, 
whether good or bad, simply because they them- 
selves are conversant with them. The body of the 
nation is scarcely acquainted with them ; it merely 
perceives their action in particular cases ; but it 
has some difficulty in seizing their tendency, and 
obeys them without premeditation. 

I have quoted one instance where it would have 
been easy to adduce a great number of others. 

The surface of American society is, if I may use 
the expression, covered with a layer of democracy, 
from beneath which the old aristocratic colours 
sometimes peep. 

' See Blackstone; and Delolme, book I. chap. x. 



49 



CHAPTER m. 

SOCIAL CONDITION OF THE ANGLO-AMERICANS. 

A SOCIAL condition is commonly the result of 
circumstances, sometimes of laws, oftener still of 
these two causes united ; but wherever it exists, 
it may justly he considered as the source of al- 
most all the laws, the usages, and the ideas which 
regulate the conduct of nations : whatever it does 
not produce, it modifies. 

It is therefore necessary, if we would become 
acquainted with the legislation and the manners 
of a nation, to begin by the study of its social 
condition. 



THE STRIKING CHARACTERISTIC OF THE SOCIAL CON- 
DITION OF THE ANGLO-AMERICANS IS ITS ESSEN- 
TIAL DEMOCRACY. 

The first emigrants of New England. — Their equality. — Aristo- 
cratic laws introduced in the South. — Period of the Revolu- 
tion. — Change in the law of descent. — EiFects produced by 
this change. — Democracy carried to its utmost limits in the new 
States of the West. — Equality of education. 

Many important observations suggest themselves 
upon the social condition of the Anglo-Ameri- 
cans ; but there is one which takes precedence of 

VOL. I. E 



50 

all the rest. The social condition of the Americans 
.^ is eminently democratic ; this was its character at 
the foundation of the Colonies, and is still more 
strongly marked at the present day. 

I have stated in the preceding chapter that great 
equality existed among the emigrants who settled 
on the shores of New England. The germ of ari- 
stocracy was never planted in that part of the Union. 
The only influence which obtained there was that 
of intellect ; the people were used to reverence cer- 
tain names as the emblems of knowledge and vir- 
tue. Some of their fellow-citizens acquired a power 
over the rest which might truly have been called 
aristocratic, if it had been capable of transmission 
from father to son. 

This was the state of things to the east of the 
Hudson : to the south-west of that river, and in 
the direction of the Floridas, the case was différent. 
In most of the States situated to the south-west of 
the Hudson some great English proprietors had 
settled, who had imported with them aristocratic 
principles and the English law of descent. I have 
explained the reasons why it was impossible ever to 
establish a powerful aristocracy in America ; these 
reasons existed with less force to the south-west of 
the Hudson. In the South, one man, aided by 
slaves, could cultivate a great extent of country : it 
was therefore common to see rich landed proprie- 
tors. But their influence was not altogether aristo- 
cratic as that term is understood in Europe, since 



51 

they possessed no privileges ; and the cultivation of 
their estates being carried on by slaves, they had 
no tenants depending on them, and consequently 
no patronage. Still, the great proprietors south 
of the Hudson constituted a superior class, having 
ideas and tastes of its own, and forming the centre 
of political action. This kind of aristocracy sympa- 
thized with the body of the people, whose passions 
and interests it easily embraced ; but it was too 
weak and too short-lived to excite either love or 
hatred for itself. This was the class which headed 
the insurrection in the South, and furnished the 
best leaders of the American revolution. 

At the period of which we are now speaking 
society was shaken to its centre : the people, in 
whose name the struggle had taken place, con- 
ceived the desire of exercising the authority which 
. it had acquired ; its democratic tendencies were 
awakened ; and having thrown off the yoke of the 
mother-country, it aspired to independence of every 
kind. The influence of individuals gradually ceased 
to be felt, and custom and law united together to 
produce the same result. 

But the law of descent was the last step to equa- 
lity. I am surprised that ancient and modern ju- 
rists have not attributed to this law a greater influ- 
ence on human affairs*. It is true that these laws 

^ I understand by the law of descent all those laws whose prin- 
cipal object it is to regulate the distribution of property after the 
death of its owner. The law of entail is of this number : it cer- 

E 2 



52 

belong to civil affairs ; but they ought neverthe- 
less to be placed at the head of all political insti- 
tutions ; for, whilst political laws are only the sym- 
bol of a nation's condition, they exercise an incre- 
dible influence upon its social state. They have, 
moreover, a sure and uniform manner of operating 
upon society, affecting, as it were, generations yet 
unborn. 

Through their means man acquires a kind of 
preternatural power over the future lot of his fel- 
low-creatures. When the legislator has regulated 
the law of inheritance, he may rest from his labour. 
The machine once put in motion will go on for 
ages, and advance, as if self-guided, towards a 
given point. When framed in a particular man- 
ner, this law unites, draws together, and vests 
property and power in a few hands : its tendency 
is clearly aristocratic. On opposite principles its 
action is still more rapid ; it divides, distributes, 
and disperses both property and power. Alarmed 
by the rapidity of its progress, those who despair 
of arresting its motion endeavour to obstruct it by 
difficulties and impediments ; they vainly seek to 
counteract its effect by contrary efforts : but it gra- 
dually reduces or destroys every obstacle, until by 

tainly prevents the owner from disposing of his possessions before 
his death ; but this is solely with the view of preserving them en- 
tire for the heir. The principal object, therefore, of the law of 
entail is to regulate the descent of property after the death of its 
owner ; its other provisions are merely means to this end. 



its incessant activity the bulwarks of the influence 
of wealth are ground down to the fine and shifting 
sand which is the basis of democracy. When the law 
of inheritance permits, still more when it decrees, 
the equal division of a father's property amongst 
all his children, its effects are of two kinds : it is 
important to distinguish them from each other, al- 
though they tend to the same end. 

In virtue of the law of partible inheritance, the 
death of every proprietor brings about a kind of 
revolution in property: not only do his possessions 
change hands, but their very nature is altered; since 
they are parcelled into shares, which become smaller 
and smaller at each division. This is the direct and, 
as it were, the physical effect of the law. It follows, 
then, that in countries where equality of inherit- 
ance is established by law, property, and especially 
landed property, must have a tendency to perpe- 
tual diminution. The effects, however, of such le- 
gislation would only be perceptible after a lapse of 
time, if the law was abandoned to its own working ; 
for supposing a family to consist of two children, 
(and in a country peopled as France is the average 
number is not above three,) these children, sharing 
amongst them the fortune of both parents, would 
not be poorer than their father or mother. 

But the law of equal division exercises its influ- 
ence not merely upon the property itself, but it 
affects the minds of the heirs, and brings their pas- 
sions into play. These indirect consequences tend 



54 

powerfully to the destruction of large fortunes, and 
especially of large domains. 

Among nations whose law of descent is founded 
upon the right of primogeniture, landed estates 
often pass from generation to generation without 
undergoing division. The consequence of which is 
that family feeling is to a certain degree incorpo- 
rated with the estate. The family represents the 
estate, the estate the family ; whose name, together 
with its origin, its glory, its power, and its virtues, 
is thus perpetuated in an imperishable memorial 
of the past, and a sure pledge of the future. 

When the equal partition of property is esta- 
blished by law, the intimate connexion is destroyed 
between family feeling and the preservation of the 
paternal estate ; the property ceases to represent 
the family ; for, as it must inevitably be divided after 
one or two generations, it has evidently a constant 
tendency to diminish, and must in the end be 
completely dispersed. The sons of the great landed 
proprietor, if they are few in number, or if fortune 
befriends them, may indeed entertain the hope of 
being as wealthy as their father, but not that of 
possessing the same property as he did ; their riches 
must necessarily be composed of elements different 
from his. 

Now, from the moment that you divest the land- 
owner of that interest in the preservation of his 
estate which he derives from association, from tra- 
dition, and from family pride, you maj' be certain 



55 

that sooner or later he will dispose of it ; for there 
is a strong pecuniary interest in favour of selling, 
as floating capital produces higher interest than 
real property, and is more readily available to gra- 
tify the passions of the moment. 

Great landed estates which have once been di- 
vided never come together again ; for the small 
proprietor draws from his land a better revenue in 
proportion, than the large owner does from his ; 
and of course he sells it at a higher rate\ The 
calculations of gain, therefore, which decided the 
rich man to sell his domain, will still more power- 
fully influence him against buying small estates to 
unite them into a large one. 

What is called family-pride is often founded upon 
an illusion of self-love. A man wishes to perpe- 
tuate and immortalize himself, as it were, in his 
great-grandchildren. Where the esprit de famille 
ceases to act, individual selfishness comes into play. 
When the idea of family becomes vague, indetermi- 
nate, and uncertain, a man thinks of his present 
convenience ; he provides for the establishment of 
the succeeding generation, and no more. 

Either a man gives up the idea of perpetuating 
his family, or at any rate he seeks to accomphsh it 
by other means than that of a landed estate. 

Thus not only does the law of partible inherit- 

^ I do not mean to say that the small proprietor cultivates his 
land better, but he cultivates it with more ardour and care ; so 
that he makes up by his labour for his want of skill. 



56 

ance render it difficult for families to preserve their 
ancestral domains entire, but it deprives them of 
the inclination to attempt it, and compels them in 
some measure to cooperate with the law in their 
own extinction. 

The law of equal distribution proceeds by two 
methods : by acting upon things, it acts upon per- 
sons; by influencing persons, it afiects things. By 
these means the law succeeds in striking at the root 
of landed property, and dispersing rapidly both fa- 
milies and fortunes*. 

Most certainly it is not for us Frenchmen of the 
nineteenth century, who daily witness the political 
and social changes which the law of partition is 
bringing to pass, to question its influence. It is 
perpetually conspicuous in our country, overthrow- 
ing the walls of our dwellings and removing the 

^ Land being the most stable kind of property, we find, from 
time to time, rich individuals who are disposed to make great sa- 
crifices in order to obtain it, and who willingly forfeit a consider- 
able part of their income to make sure of the rest. But these are 
accidental cases. The preference for landed property is no longer 
found habitually in any class but among the poor. The small 
landowner, who has less information, less imagination, and fewer 
passions than the great one, is generally occupied with the desire 
of increasing his estate; and it often happens that by inheritance, 
by marriage, or by the chances of trade, he is gradually furnished 
with the means. Thus, to balance the tendency which leads men 
to divide their estates, there exists another, which incites them 
to add to them. This tendency, which is sufi&cient to prevent 
estates from being divided ad infinitum, is not strong enough to 
create great territorial possessions, certainly not to keep them up 
in the same family. 



- 57 

landmarks of our fields. But although it has pro- 
duced great effects in France, much still remains 
for it to do. Our recollections, opinions, and habits 
present powerful obstacles to its progress. 

In the United States it has nearly completed its 
work of destruction, and there we can best study- 
its results. The English laws concerning the trans- 
mission of property were abolished in almost all the 
States at the time of the Revolution. The law of 
entail was so modified as not to interrupt the free 
circulation of property \ The first generation hav- 
ing passed away, estates began to be parcelled out ; 
and the change became more and more rapid with 
the progress of time. At this moment, after a 
lapse of little more than sixty years, the aspect of 
society is totally altered ; the families of the great 
landed proprietors are almost all commingled with 
the general mass. In the State of New York, 
which formerly contained many of these, there are 
but two who still keep their heads above the stream ; 
and they must shortly disappear. The sons of 
these opulent citizens are become merchants, law- 
yers, or physicians. Most of them have lapsed 
into obscurity. The last trace of hereditary ranks 
and distinctions is destroyed, — the law of partition 
has reduced all to one level. 

I do not mean that there is any deficiency of 
wealthy individuals in the United States ; I know 
of no country, indeed, where the love of money has 
* See Appendix, G. 



58 

taken stronger hold on the affections of men, and 
where a profounder contempt is expressed for the 
theory of the permanent equaUty of property. But 
wealth circulates with inconceivable rapidity, and 
experience shows that it is rare to find two suc- 
ceeding generations in the full enjoyment of it. 

This picture, which may perhaps be thought to 
be overcharged, still gives a very imperfect idea of 
what is taking place in the new States of the West 
and South-west. At the end of the last century 
a few bold adventurers began to penetrate into the 
valleys of the Mississippi : and the mass of the 
population very soon began to move in that direc- 
tion : communities unheard of till then were seen 
to emerge from the wilds : States, whose names 
were not in existence a few years before, claimed 
their place in the American Union: and in the 
Western settlements we may behold democracy 
arrived at its utmost extreme. In these States, 
founded offhand and as it were by chance, the 
inhabitants are but of yesterday. Scarcely known 
to one another, the nearest neighbours are ignorant 
of each other's history. In this part of the Ame- 
rican continent, therefore, the population has not 
experienced the influence of great names and great 
wealth, nor even that of the natural aristocracy of 
knowledge and virtue. None are there to wield 
that respectable power which men willingly grant 
to the remembrance of a life spent in doing good 
before their eyes. The new States of the West are 



59 

already inhabited; but society has no existence 
among them. 

It is not only the fortunes of men which are 
equal in America ; even their acquirements par- 
take in some degree of the same uniformity. I do 
not believe that there is a country in the world 
where > in proportion to the population, there are 
so few uninstructed, and at the same time so few 
learned individuals. Primary instruction is within 
the reach of everybody ; superior instruction is 
scarcely to be obtained by any. This is not sur- 
prising ; it is in fact the necessary consequence of 
what we have advanced above. Almost all the Ame- 
ricans are in easy circumstances, and can therefore 
obtain the first elements of human knowledge. 

In America there are comparatively few who are 
rich enough to live without a profession. Every 
profession requires an apprenticeship, which limits 
the time of instruction to the early years of life. 
At fifteen they enter upon their calling, and thus 
their education ends at the age when ours begins. 
Whatever is done afterwards, is with a view to 
some special and lucrative object; a science is taken 
up as a matter of business, and the only branch of 
it which is attended to is such as admits of an 
immediate practical application. 

In America most of the rich men were formerly 
poor : most of those who now enjoy leisure were 
absorbed in business during their youth ; the conse- 
quence of which is, that when they might have had 



60 

a taste for study, they had no time for it, and when 
the time is at their disposal they have no longer the 
inclination. 

There is no class, then, in America in which the 
taste for intellectual pleasures is transmitted with 
hereditary fortune and leisure, and by which the 
labours of the intellect are held in honour. Ac- 
cordingly there is an equal want of the desire and 
the power of application to these objects. 

A middling standard is fixed in America for hu- 
man knowledge. All approach as near to it as 
they can; some as they rise, others as they descend. 
Of course, an immense multitude of persons are to 
be found who entertain the same number of ideas 
on religion, history, science, political economy, le- 
gislation, and government. The gifts of intellect 
proceed directly from God, and man cannot prevent 
their unequal distribution. But in consequence of 
the state of things which we have here represented, 
it happens, that although the capacities of men are 
widely different, as the Creator has doubtless in- 
tended they should be, they are submitted to the 
same method of treatment. 

In America the aristocratic element has always 
been feeble from its birth ; and if at the present day 
it is not actually destroyed, it is at any rate so com- 
pletely disabled that we can scarcely assign to it any 
degree of influence in the course of affairs. 

The democratic principle, on the contrary, has 
gained so much strength by time, by events, and 



61 

by legislation, as to have become not only predo- 
minant but all-powerful. There is no family or 
corporate authority, and it is rare to find even the 
influence of individual character enjoy any dura- 
biUty. 

America, then, exhibits in her social state a most 
extraordinary phsenomenon. MexLarejhere^een on 
a greater equality- 4n.-pQiiitj)f fortune and intellect, 
or, in other words, more equal in their strength, 
than in any other country of the world, or in any 
age of which history has preserved the remem- 
brance. 



POLITICAL CONSEQUENCES OF THE SOCIAL CONDITION 
OF THE ANGLO-AMERICANS. 

The political consequences of such a social condi- 
tion as this are easily deducible. 

It is impossible to believe that equality will not 
eventually find its way into the political world as 
it does everywhere else. To conceive of men re- 
maining for ever unequal upon one single point, 
yet equal on all others, is impossible ; they must 
come in the end to be equal upon all. 

Now I know of only two methods of establishing 
equality in the political world ; every citizen must 
be put in possession of his rights, or rights must 
be granted to no one. For nations which are arrived 
at the same stage of social existence as the Anglo- 
Americans, it is therefore very difficult to discover 




62 

a medium between the sovereignty of all and the 
absolute power of one man : and it would be vain 
to deny that the social condition which I have been 
describing is equally liable to each of these conse- 
quences. 
--•#' There is, in fact, a manly and lawful passion for 
equality which excites men to wish all to be power- 
ful and honoured. This passion tends to elevate 
the humble to the rank of the great ; but there 
exists also in the human heart a depraved taste for 
equality, which impels ^th^wettk-to attempt to lower 
the powerful to their own level, and reduces men 
to prefer equality in slavery to inequaUty with free- 
dom. Not that those nations whose social condi- 
tion is democratic naturally despise liberty ; on the 
contrary, they have an instinctive love of it. But 
liberty is not the chief and constant object of their 
desires ; equality is their idol : they make rapid and 
sudden efforts to obtain liberty ; and if they miss 
their aim, resign themselves to their disappoint- 
ment ; but nothing can satisfy them except equality, 
and rather than lose it they resolve to perish. 

On the other hand, in a state where the citizens 
are nearly on an equality, it becomes difficult for 
them to preserve their independence against the 
aggressions of power. _ No one among them being 
strong enough to engage in the struggle with ad- 
vantage, nothing but a general combination can pro- 
tect their liberty. And such a union is not always 
to be found. 



63 

From the same social position, then, nations may 
derive one or the other of two great political results ; 
these results are extremely different from each other, 
but they may both proceed from the same cause. 

The Anglo-Americans are the first nations who, 
having been exposed to this formidable alternative, 
have been happy enough to escape the dominion of 
absolute power. They have been allowed by their 
circumstances, their origin, their intelligence, and 
especially by their moral feeling, to establish and 
maintain the sovereignty of the people. 



G4 



CHAPTER IV. 

THE PRINCIPLE OF THE SOVEREIGNTY OF THE PEOPLE 
IN AMERICA. 

It predominates over the whole of society in America. — Applica- 
tion made of this principle by the Americans even before their 
Revolution. — Development given to it by that Revolution. — 
Gradual and irresistible extension of the elective qualification. 

Whenever the political laws of the United states 
are to be discussed, it is with the doctrine of the 
sovereignty of the people that we must begin. 

The principle of the sovereignty of the people, 
which is to be found, more or less, at the bottom 
of almost all human institutions, generally remains 
concealed from view. It is obeyed without being 
recognised, or if for a moment it be brought to 
light, it is hastily cast back into the gloom of the 
sanctuary. ^ 

' The will of the nation ' is one of those expres- 
sions which have been most profusely abused by 
the wily and the despotic of every age. To the eyes 
of some it has been represented by the venal suf- 
frages of a few of the satellites of power ; to others, 
by the votes of a timid or an interested minority ; 
and some have even discovered it in the silence of 
a people, on the supposition that the fact of sub- 
mission established the right of command. 



65 

In America, the principle of the sovereignty of 
the people is not either barren or concealed, as it 
is with some other nations ; it is recognised by the 
customs and proclaimed by the laws ; it spreads 
freely, and arrives without impediment at its most 
remote consequences. If there be a country in the 
world where the doctrine of the sovereignty of the 
people can be fairly appreciated, where it can be 
studied in its application to the affairs of society, 
and where its dangers and its advantages may be 
foreseen, that country is assuredly America. 

I have already observed that, from their origin, 
the sovereignty of the people was the fundamental 
principle of the greater number of British colonies 
in America. It was far, however, from then ex- 
ercising as much influence on the government of 
society as it now does. Two obstacles, the one 
external, the other internal, checked its invasive 
progress. 

It could not ostensibly disclose itself in the laws 
of colonies which were still constrained to obey 
the mother-country : it was therefore obliged to 
spread secretly, and to gain ground in the provin- 
cial assemblies, and especially in the townships. 

American society was not yet prepared to adopt 
it with all its consequences. The intelligence of 
New England, and the wealth of the country to the 
south of the Hudson, (as I have shown in the pre- 
ceding chapter,) long exercised a sort of aristocra- 
tic influence, whixîh tended to retain the exercise 

VOL. I. F 



66 

of social authority in the hands of a few. The pub- 
lic functionaries were not universally elected, and 
the citizens were not all of them electors. The 
electoral franchise was everywhere placed within 
certain limits, and made dependent on a certain 
qualification, which was exceedingly low in the 
north and more considerable in the south. 

The American revolution broke out, and the 
doctrine of the sovereignty of the people, which 
had been nurtured in the townships and munici- 
palities, took possession of the State : every class 
was enlisted in its cause ; battles were fought, and 
victories obtained for it ; until it became the law 
of laws. 

A no less rapid change was effected in the inte- 
rior of society, where the law of descent completed 
the abolition of local influences. 

At the very time when this consequence of the 
laws and of the revolution was apparent to every 
eye, victory was irrevocably pronounced in favour 
of the democratic cause. All power was, in fact, 
in its hands, and resistance was no longer possible, 
The higher orders submitted without a murmur and 
without a struggle to an evil which was thence- 
forth inevitable. The ordinary fate of falling powers 
awaited them ; each of their several members fol- 
lowed his own interest ; and as it was impossible to 
wring the power from the hands of a people which 
they did not detest sufficiently to brave, their only 
aim was to secure its good- will at any price. The 



most democratic laws were consequently voted by 
the very men whose interests they impaired : and 
thus, although the higher classes did not excite the 
passions of the people against their order, they ac- 
celerated the triumph of the new state of things ; 
so that, by a singular change, the democratic im- 
pulse was found to be most irresistible in the very 
States where the aristocracy had the firmest hold. 

The State of Maryland, which had been founded 
by men of rank, was the first to proclaim univer- 
sal suffrage, and to introduce the most democratic 
forms into the conduct of its government. 

When a nation modifies the elective qualification, 
it may easily be foreseen that sooner or later that 
qualification will be entirely abolished. There is 
no more invariable rule in the history of society : 
the further electoral rights are extended, the greater 
is the need of extending them ; for after each con- 
cession the strength of the democracy increases, 
and its demands increase with its strength. The 
ambition of those who are below the appointed rate 
is irritated in exact proportion to the great number 
of those who are above it. The exception at last 
becomes the rule, concession follows concession, 
and no stop can be made short of universal suf- 
frage. 

At the present day the principle of the sove- 
reignty of the people has acquired, in the United 
States, all the practical development which the 
imagination can conceive. It is unencumbered by 

f2 



68 

those fictions which have been thrown over it in 
other countries, and it appears in every possible 
form according to the exigency of the occasion. 
Sometimes the laws are made by the people in a 
body, as at Athens ; and sometimes its représenta- 
tives, chosen by universal suffrage, transact business 
in its name, and almost under its immediate con- 
trol. 

In some countries a power exists which, though 
it is in a degree foreign to the social body, di- 
rects it, and forces it to pursue a certain track. 
In others the ruling force is divided, being partly 
within and partly without the ranks of the people. 
But nothing of the kind is to be seen in the United 
States ; there society governs itself for itself. All 
power centres in its bosom ; and scarcely an indi- 
vidual is to be met with who would venture to con- 
ceive, or, still less, to express, the idea of seeking 
it elsewhere. The nation participates in the making 
of its laws by the choice of its legislators, and in 
the execution of them by the choice of the agents 
of the executive government; it may almost be 
said to govern itself, so feeble and so restricted is 
the share left to the administration, so little do the 
authorities forget their popular origin and the power 
from which they emanate'. 

^ See Appendix, H. 



69 



CHAPTER V. 

NECESSITY OF EXAMINING THE CONDITION OF THE 
STATES BEFORE THAT OF THE UNION AT LARGE. 

It is proposed to examine in the following chap- 
ter, what is the form of government established in 
America on the principle of the sovereignty of the 
people ; what are its resources, its hindrances, its 
advantages, and its dangers. The first difficulty 
which presents itself arises from the complex na- 
ture of the Constitution of the United States, which 
consists of two distinct social structures, connected, 
and, as it were, encased one within the other ; two 
governments, completely separate and almost inde- 
pendent, the one fulfilling the ordinary duties, and 
responding to the daily and indefinite calls of a 
community, the other circumscribed within certain 
limits, and only exercising an exceptional authority 
over the general interests of the country. In short, 
there are twenty-four small sovereign nations, whose 
agglomeration constitutes the body of the Union. 
To examine the Union before we have studied the 
States, would be to adopt a method filled with ob- 
stacles. The form of the Federal Government of the 
United States was the last which was adopted ; and 




70 

it is in fact nothing more than a modification or a 
summary of those repubUcan principles which were 
current in the whole community before it existed, 
and independently of its existence. Moreover, the 
Federal Government is, as I have justobserved7 
^ffie^exception ; the Government of the States is the 
rul^. The author who should attempt to exhibit 
the picture as a whole, before he had explained its 
details, would necessarily fall into obscurity and re- 
petition. 

The great political principles which govern Ame- 
rican society at this day undoubtedly took their 
origin and their growth in the State. It is there- 
fore necessary to become acquainted with the State 
in order to possess a clue to the remainder. The 
States which at present compose the American 
Union all present the same features as far as regards 
the external aspect of their institutions. Their 
political or administrative existence is centred in 
three focuses of action, which may not inaptly be 
compared to the different nervous centres which 
convey motion to the human body. The township 
is the lowest in order, then the county, and lastly 
the State ; and I propose to devote the following 
chapter to the examination of these three divi- 
sions. 



71 



THE AMERICAN SYSTEM OF TOWNSHIPS AND MUNI- 
CIPAL BODIES ^ 

Why the Author begins the examination of the political insti- 
tutions with the township. — Its existence in all nations. — Diffi- 
culty of establishing and preserving municipal independence. — 
Its importance. — Why the Author has selected the township 
system of New England as the main topic of his discussion. 

It is not undesignedly that I begin this subject with 
the Township. The village or township is the only 
association which is so perfectly natural, that wher- 
ever a number of men are collected, it seems to con- 
stitute itself. 

The town, or tithing, as the smallest division of 

' [It is by this periphrasis that I attempt to render the French 
expressions 'Commune^ and ' Système Communal' . I am not aware 
that any English word precisely corresponds to the general term 
of the original. In France every association of human dwellings 
forms a commune, and every commune is governed by a Maire and a 
Conseil municipal. In other words, the mancipium, or municipal pri- 
vilege, which belongs in England to chartered corporations alone, 
is ahke extended to every commune into which the cantons and 
departments of France were divided at the Revolution. Thence 
the different application of the expression, which is general in one 
country and restricted in the other. In America, the counties 
of the Northern States are divided into townships, those of the 
Southern into parishes ; besides which, municipal bodies, bearing 
the name of corporations, exist in the cities. I shall apply these 
several expressions to render the term commune. The word ' parish', 
now commonly used in England, belongs exclusively to the eccle- 
siastical division; it denotes the limits over which a parson's {per- 
sona ecclesiœ or T^Qxhdi^s, parochianus) rights extend. — Translator's 
Note.'] 



72 

a community, must necessarily exist in all nations, 
whatever their laws and customs may be : if man 
makes monarchies, and establishes republics, the 
first association of mankind seems constituted by 
the hand of God. But although the existence of the 
township is coeval with that of man, its liberties are 
not the less rarely respected and easily destroyed. 
A nation is always able to establish great political 
assemblies, because it habitually contains a certain 
number of individuals fitted by their talents, if not 
by their habits, for the direction of affairs. The 
township is, on the contrary, composed of coarser 
materials, which are less easily fashioned by the 
legislator. The difficulties which attend the con- 
solidation of its independence rather augment than 
diminish with the increasing enlightenment of the 
people. A highly civilized community spurns the 
attempts of a local independence, is disgusted at its 
numerous blunders, and is apt to despair of success 
before the experiment is completed. Again, no 
immunities are so ill protected from the encroach- 
ments of the supreme power as those of municipal 
bodies in general : they are unable to struggle, 
single-handed, against a strong or an enterprising 
government, and they cannot defend their cause 
with success unless it be identified with the customs 
of the nation and supported by public opinion. 
Thus until the independence of townships is amal- 
gamated with the manners of a people, it is easily 
destroyed ; and it is only after a long existence in 



73 

the laws that it can be thus amalgamated. Muni- 
cipal freedom is not the fruit of human device ; it 
is rarely created ; but it is, as it were, secretly and 
spontaneously engendered in the midst of a semi- 
barbarous state of society. The constant action of 
the laws and the national habits, peculiar circum- 
stances, and above all time, may consolidate it ; but 
there is certainly no nation on the continent of 
Europe w^hich has experienced its advantages. 
Nevertheless local assemblies of citizens constitute 
the strength of free nations. Town-meetings are to 
liberty what primary schools are to science ; they 
bring it within the people's reach, they teach men 
how to use and how to enjoy it. A nation may 
establish a system of free government, but without 
the spirit of municipal institutions it cannot have 
the spirit of Hberty. The transient passions, and 
the interests of an hour, or the chance of circum- 
stances, may have created the external forms of in- 
dependence ; but the despotic tendency which has 
been repelled will, sooner or later, inevitably re- 
appear on the surface. 

In order to explain to the reader the general 
principles on which the political organization of the 
counties and townships of the United States rests, 
I have thought it expedient to choose one of the 
States of New England as an example, to examine 
the mechanism of its constitution, and then to cast 
a general glance over the country. 

The township and the county are not organized 



74 

in the same manner in every part of the Union ; it 
is however easy to perceive that the same principles 
have guided the formation of both of them through- 
out the Union. I am incUned to beheve that these 
principles have been carried further in New England 
than elsewhere, and consequently that they offer 
greater facilities to the observations of a stranger. 

The institutions of New England form a complete 
and regular whole : they have received the sanction 
of time, they have the support of the laws, and the 
still stronger support of the manners of the com- 
munity, over which they exercise the most pro- 
digious influence ; they consequently deserve our 
attention on every account. 



LIMITS OF THE TOWNSHIP. 

The Township of New England is a division which 
stands between the commune and the canfo^ of France, 
and which corresponds in general to the English 
tithing, or town. Its average population is from 
two to three thousand^ : so that, on the one hand, 
the interests of its inhabitants are not likely to 
conflict, and, on the other, men capable of con- 
ducting its affairs are always to be found among its 
citizens. 

» In 1830 there were 305 townships in the State of Massa- 
chusetts, and 610,014 inhabitants; which^ gives an average of 
about 2000 inhabitants to each township. 



75 



AUTHORITIES OF THE TOWNSHIP IN NEW ENGLAND. 

The people the source of all power here as elsewhere. — Manages 
its own affairs. — No corporation. — The greater part of the au- 
thority vested iii the hands of the Selectmen. — How the Select- 
men act. — Town-meeting. — Enumeration of the public officers 
of the township. — Obligatory and remunerated functions. 

In the township, as well as everywhere else, the 
people is the only source of power ; but in no stage 
of government does the body of citizens exercise a 
more immediate influence. In America, the people 
is a master whose exigencies demand obedience to 
the utmost limits of possibility. 

In New England the majority acts by represen- 
tatives in the conduct of the public business of 
the State ; but if such an arrangement be necessary 
in general affairs, in the townships, where the legis- 
lative and administrative action of the government 
is in more immediate contact with the subject, the 
system of representation is not adopted. There 
is no corporation ; but the body of electors, after 
having designated its magistrates, directs them in 
everything that exceeds the simple and ordinary 
executive business of the State ^ 

* The same rules are not applicable to the great towns, which 
generally have a mayor, and a corporation divided into two bo- 
dies : this, however, is an exception which requires the sanction 
of a law. — See the Act of the 22nd February 1822, for appointing 
the authorities of the City of Boston. It frequently happens that 
small towns as well as cities are subject to a peculiar administra- 
tion. In 1832, 104 townships in the State of New York were 
governed in this manner. Williams's Register. 



76 

This state of things is so contrary to our ideas, 
and so different from our customs, that it is neces- 
sary for me to adduce some examples to explain it 
thoroughly. 

The public duties in the township are extremely 
numerous, and minutely divided, as we shall see 
further on ; but the larger proportion of admini- 
strative power is vested in the hands of a smalL 
number of individuals, called '* the Selectmen \" 

The general laws of the State impose a certain 
number of obligations on the selectmen, which they 
may fulfil without the authorization of the body they 
represent, but which they can only neglect on their 
own responsibility. The law of the State obliges 
them, for instance, to draw up the list of electors 
in their townships ; and if they omit this part of 
their functions, they are guilty of a misdemeanour. 
In all the affairs, however, which are determined by 
the town-meeting, the selectmen are the organs of 
the popular mandate, as in France the Maire ex- 
ecutes the decree of the municipal council. They 
usually act upon their own responsibility, and merely 
put in practice principles w^hich have been previ- 

1 Three selectmen are appointed in the small townships, and 
nine in the large ones. — See ' The Town Officer,' p. 186. See also 
the principal laws of the State of Massachusetts relative to the 
selectmen ; 

Act of the 20th February, 1786, vol. i. p. 219 ; 24th February, 
1796, vol. i. p. 488 ; 7th March, 1801, vol, ii. p. 45 ; 16th June, 
1795, vol. i. p. 475 ; 12th March, 1808, vol. ii. p. 186 ; 28th Fe- 
bruary, 1 787, vol. i. p. 302 ; 22nd June, 1797, vol. i. p. 539. 



77 

ously recognised by the majority. But if any change 
is to be introduced in the existing state of things, 
or if they wish to undertake any new enterprise, 
they are obHged to refer to the source of their 
power. If, for instance, a school is to be esta- 
bhshed, the selectmen convoke the whole body of 
electors on a certain day at an appointed place ; 
they explain the urgency of the case ; they give 
their opinion on the means of satisfying it, on the 
probable expense, and the site which seems to be 
most favourable. The meeting is consulted on these 
several points ; it adopts the principle, marks out 
the site, votes the rate, and confides the execution 
of its resolution to the selectmen. 

The selectmen have alone the right of calling a 
town-meeting ; but they may be requested to do so: 
if ten citizens are desirous of submitting a new pro- 
ject to the assent of the township, they may de- 
mand a general convocation of the inhabitants ; the 
selectmen are obliged to comply, but they have only 
the right of presiding at the meeting*. 

The selectmen are elected every year in the 
month of April or of May. The town-meeting 
chooses at the same time a number of other muni- 
cipal magistrates, who are entrusted with important 
administrative functions. The assessors rate the 
township ; the collectors receive the rate. A con- 
stable is appointed to keep the peace, to watch the 

» See Laws of Massachusetts, vol. i. p. 150, Act of the 25th 
March, 1786. 



78 

streets, and to forward the execution of the laws ; 
the town-clerk records all the town votes, orders, 
grants, births, deaths, and marriages ; the treasurer 
keeps the funds ; the overseer of the poor performs 
the difficult task of superintending the action of the 
poor-laws ; committee-men are appointed to attend 
to the schools and to public instruction ; and the 
road-surveyors, who take care of the greater and 
lesser thoroughfares of the township, complete the 
list of the principal functionaries. They are, how- 
ever, still further subdivided ; and amongst the 
municipal officers are to be found parish commis- 
sioners, who audit the expenses of public worship ; 
diffisrent classes of inspectors, some of whom are 
to direct the citizens in case of fire ; tithing-men, 
listers, haywards, chimney- viewers, fence- viewers 
to maintain the bounds of property, timber-mea- 
surers, and sealers of weights and measures \ 

There are nineteen principal offices in a town- 
ship. Every inhabitant is constrained, on pain of 
being fined, to undertake these different functions ; 
which, however, are almost all paid, in order that 
the poorer citizens may be able to give up their 
time without loss. In general the American system 
is not to grant a fixed salary to. its functionaries. 
Every service has its price, and they are remu- 
nerated in proportion to what they have done. 

i All these magistrates actually exist ; their différent functions 
are all detailed in a book called 'The Town Officer,' by Isaac 
Goodwin, Worcester, 1827; and in the Collection of the Gene- 
ral Laws of Massachusetts, 3 vols., Boston, 1823. 



79 



EXISTENCE OF THE TOWNSHIP, 

Every one the best judge of his own interest. — Corollary of the 
principle of the sovereignty of the people. — Application of these 
doctrines in the townships of America. — ^The township of New 
England is sovereign in all that concerns itself alone : subject 
to the State in all other matters. — Bond of the township and 
the State. — In France the Government lends its agents to the 
Commune. — In America the reverse occurs. 

I HAVE already observed, that the principle of the 
sovereignty of the people governs the whole poli- 
tical system of the Anglo-Americans. Every page 
of this book will afford new instances of the same 
doctrine. In the nations by which the sovereignty 
of the people is recognised, every individual pos- 
sesses an equal share of power, and participates 
alike in the government of the State. Every indi- 
vidual is, therefore, supposed to be as well informed, 
as virtuous, and as strong as any of his fellow-citi- 
zens. He obeys the government, not because he is 
inferior to the authorities which conduct it, or that 
he is less capable than his neighbour of governing 
himself, but because he acknowledges the utility 
of an association with his fellow-men, and because 
he knows that no such association can exist without 
a regulating force. If he be a subject in all that 
concerns the mutual relations of citizens, he is free, 
and responsible to God alone for all that concerns 
himself. Hence arises the maxim that every one 
is the best and the sole judge of his own private 
interest, and that society has no right to control a 



80 

man's actions, unless they are prejudicial to the 
common weal, or unless the common weal demands 
his cooperation. This doctrine is universally ad- 
mitted in the United States. I shall hereafter ex- 
amine the general influence which it exercises on 
the ordinary actions of life : I am now speaking of 
the nature of municipal bodies. 

The township, taken as a whole, and in relation 
to the government of the country, may be looked 
upon as an individual to whom the theory I have 
just alluded to is applied. Municipal independence 
is therefore a natural consequence of the princi- 
ple of the sovereignty of the people in the United 
States : all the American republics recognise it 
more or less ; but circumstances have peculiarly 
favoured its growth in New England. 

In this part of the Union the impulsion of poli- 
tical activity was given in the townships ; and it 
may almost be said that each of them originally 
formed an independent nation. When the kings 
of England asserted their supremacy, they were 
contented to assume the central power of the State. 
The townships of New England remained as they 
were before ; and although they are now subject to 
the State, they were at first scarcely dependent 
upon it. It is important to remember that they 
have not been invested with privileges, but that 
they have, on the contrary, forfeited a portion of 
their independence to the State. The townships 
are only subordinate to the State in those interests 



81 

which I shall term social, as they are common to 
all the citizens. They are independent in all that 
concerns themselves ; and amongst the inhabitants 
of New England I believe that not a man is to be 
found who would acknowledge that the State has 
any right to interfere in their local interests. The 
towns of New England buy and sell, prosecute or 
are indicted, augment or diminish their rates, with- 
out the slightest opposition on the part of the ad- 
ministrative authority of the State. 

They are bound, however, to comply with the 
demands of the community. If the State is in need 
of money, a town can neither give nor withhold the 
supplies. If the State projects a road, the township 
cannot refuse to let it cross its territory ; if a police 
regulation is made by the State, it must be enforced 
by the town. A uniform system of instruction is 
organized all over the country, and every town is 
bound to establish the schools which the law or- 
dains. In speaking of the administration of the 
United States, I shall have occasion to point out 
the means by which the townships are compelled 
to obey in these different cases : I here merely 
show the existence of the obligation. Strict as this 
obligation is, the government of the State imposes 
it in principle only, and in its performance the 
township resumes all its independent rights. Thus, 
taxes are voted by the State, but they are levied 
and collected by the township ; the existence of a 
school is obligatory, but the township builds, pays, 

VOL. I. G 



82 

and superintends it. In France the State-collector 
receives the local imposts ; in America the town- 
collector receives the taxes of the State. Thus the 
French Government lends its agents to the com- 
mune ; in America, the township is the agent of 
the Government. This fact alone shows the ex- 
tent of the differences which exist between the two 
nations. 



PUBLIC SPIRIT OF THE TOWNSHIPS OF NEW EN- 
GLAND. 

How the township of New England wins the affections of its in- 
habitants. — Difficulty of creating local public spirit in Europe. 
— The rights and duties of the American township favourable to 
it. — Characteristics of home in the United States. — Manifesta- 
tions of public spirit in New England. — Its happy effects. 

In America, not only do municipal bodies exist, 
but they are kept alive and supported, by public 
spirit. The township of New England possesses two 
advantages which infallibly secure the attentive in- 
terest of mankind, namely, independence and au- 
thority. Its sphere is indeed small and limited, but 
within that sphere its action is unrestrained ; and its 
independence gives to it a real importance, which 
its extent and population may not always ensure. 

It is to be remembered that the affections of men 
generally lie on the side of authority. Patriotism 
is not durable in a conquered nation. The New 
Englander is attached to his township, not only 



83 

because he was born in it, but because it consti- 
tutes a social body of which he is a member, and 
whose government claims and deserves the exer- 
cise of his sagacity. In Europe the absence of 
local public spirit is a frequent subject of regret 
to those who are in power ; everyone agrees that 
there is no surer guarantee of order and tranquil- 
lity, and yet nothing is more difficult to create. If 
the municipal bodies were made powerful and in- 
dependent, the authorities of the nation might be 
disunited, and the peace of the country endangered. 
Yet, without power and independence, a town may 
contain good subjects, but it can have no active 
citizens. Another important fact is that the town- 
ship of New England is so constituted as to excite 
the warmest of human affections, without arousing 
the ambitious passions of the heart of man. The 
officers of the county are not elected, and their 
authority is very limited. Even the State is only 
a second-rate community, whose tranquil and ob- 
scure administration offers no inducement suffi- 
cient to draw men away from the circle of their 
interests into the turmoil of public affairs. The 
federal government confers power and honour on 
the men who conduct it ; but these individuals can 
never be very numerous. The high station of the 
Presidency can only be reached at an advanced 
period of life ; and the other federal functionaries 
are generally men who have been favoured by for- 
tune, or distinguished in some other career. Such 

g2 



84 

cannot be the permanent aim of the ambitious. 
But the township serves as a centre for the desire 
of pubUc esteem, the want of exciting interests, and 
the taste for authority and popularity, in the midst 
of the ordinary relations of life ; and the passions 
which commonly embroil society, change their cha- 
racter when they find a vent so near the domestic 
hearth and the family circle. 

In the American States power has been dissemi- 
nated with admirable skill, for the purpose of inter- 
esting the greatest possible number of persons in 
the common weal. Independently of the electors 
who are from time to time called into action, the 
body politic is divided into innumerable function- 
aries and officers, who all, in their several spheres, 
represent the same powerful whole in whose name 
they act. The local administration thus affords an 
unfailing source of profit and interest to a vast 
number of individuals. 

The American system, which divides the local 
authority among so many citizens, does not scruple 
to multiply the functions of the town officers. For 
in the United States it is believed, and with truth, 
that patriotism is a kind of devotion which is 
strengthened by ritual observance. In this man- 
ner the activity of the township is continually 
perceptible ; it is daily manifested in the fulfilment 
of a duty, or the exercise of a right ; and a con- 
stant though gentle motion is thus kept up in 
society, which animates without disturbing it. 



85 

The American attaches himself to his home, as 
the mountaineer clings to his hills, because the 
characteristic features of his country are there more 
distinctly marked than elsewhere. The existence 
of the townships of New England is in general a 
happy one. Their government is suited to their 
tastes, and chosen by themselves. In the midst 
of the profound peace and general comfort which 
reign in America, the commotions of municipal 
discord are unfrequent. The conduct of local busi- 
ness is easy. The political education of the people 
has long been complete ; say rather that it was 
complete when the people first set foot upon the 
soil. In New England no tradition exists of a 
distinction of ranks ; no portion of the community 
is tempted to oppress the remainder ; and the abuses 
which may injure isolated individuals are forgotten 
in the general contentment which prevails. If the 
government is defective, (and it would no doubt be 
easy to point out its déficiences,) the fact that it 
really emanates from those it governs, and that it 
acts, either ill or well, casts the protecting spell of 
a parental pride over its faults. No term of com- 
parison disturbs the satisfaction of the citizen : 
England formerly governed the mass of the colo- 
nies, but the people was always sovereign in the 
township, where its rule is not only an ancient, 
but a primitive state. 

The native of New England is attached to his 
township because it is independent and free r his 



86 

cooperation in its affairs ensures his attachment to 
its interest; the well-being it affords him secures 
his affection ; and its welfare is the aim of his 
ambition and of his future exertions : he takes a 
part in every occurrence in the place ; he practises 
the art of government in the small sphere within 
his reach; he accustoms himself to those forms 
which can alone ensure the steady progress of li- 
berty ; he imbibes their spirit ; he acquires a taste 
for order, comprehends the union or the balance of 
powers, and collects clear practical notions on the 
nature of his duties and the extent of his rights. 



THE COUNTIES OF NEW ENGLAND. 

The division of the counties in America has consi- 
derable analogy with that of the arrondissements of 
France. The limits of the counties are arbitrarily 
laid down, and the various districts which they con- 
tain have no necessary connexion, no common tra- 
dition or natural sympathy ; their object is simply 
to facilitate the administration of justice. 

The extent of the township was too small to con- 
tain a system of judicial institutions ; each county 
has however a court of justice ^ a sheriff to execute 
its decrees, and a prison for criminals. There are 
certain wants which are felt alike by all the town- 

> See the Act of the 14th February 1821. Laws of Massa- 
chusetts, vol. i. p. 551. 



87 

ships of a county ; it is therefore natural that they 
should be satisfied by a central authority. In the 
State of Massachusetts this authority is vested in 
the hands of several magistrates, who are appointed 
by the Governor of the State, with the advice^ of 
his council^. The officers of the county have only 
a limited and occasional authority, which is appli- 
cable to certain predetermined cases. The State 
and the townships possess all the power requisite 
to conduct public business. The budget of the 
county is drawn up by its officers, and is voted by 
the legislature, but there is no assembly which di- 
rectly or indirectly represents the county. It has 
therefore, properly speaking, no political existence. 
A twofold tendency may be discerned in the 
American constitutions, which impels the legis- 
lator to centralize the legislative, and to disperse 
the executive power. The township of New En- 
gland has in itself an indestructible element of in- 
dependence ; and this distinct existence could only 
be fictitiously introduced into the county, where 
its utility has not been felt. But all the townships 
united have but one representation, which is the 
State, the centre of the national authority : beyond 
the action of the township and that of the nation, 
nothing can be said to exist but the influence of in- 
dividual exertion. 

1 See the Act of the 20th February 1819. Laws of Massa- 
chusetts, vol. ii. p. 494. 

2 The council of the Governor is an elective body. 



88 



ADMINISTRATION IN NEW ENGLAND. 

Administration not perceived in America. — Why ? — The Eu- 
ropeans believe that liberty is promoted by depriving the social 
authority of some of its rights ; the Americans, by dividing 
its exercise. — Almost all the administration confined to the 
tovi^nship, and divided amongst the town-officers. — No trace of 
an administrative body to be perceived either in the township, 
or above it. — The reason of this. — How it happens that the 
administration of the State is uniform. — Who is empowered to 
enforce the obedience of the township and the county to the 
law. — The introduction of judicial power into the administra- 
tion. — Consequence of the extension of the elective principle 
to all functionaries. — The Justice of the Peace in New England. 
— By whom appointed. — County officer : — ensures the admi- 
nistration of the townships. — Court of Sessions. — Its action. — 
Right of inspection and indictment disseminated like the other 
administrative functions. — Informers encouraged by the divi- 
sion of fines. 

Nothing is more striking to an European traveller 
in the United States than the absence of what we 
term the Government, or the Administration. Written 
laws exist in America, and one sees that they are 
daily executed ; but although everything is in mo- 
tion, the hand which gives the impulse to the social 
machine can nowhere be discovered. 'Neverthe- 
less, as all peoples are obliged to have recourse to 
certain grammatical forms, which are the founda- 
tion of human language, in order to express their 
thoughts ; so all communities are obliged to secure 
their existence by submitting to a certain dose of 
authority, without which they fall a prey to anarchy. 



89 

This authority may be distributed in several ways, 
but it must always exist somewhere. 

There are two methods of diminishing the force 
of authority in a nation : 

The first is to weaken the supreme power in its 
very principle, by forbidding or preventing society 
from acting in its own defence under certain cir- 
cumstances. To weaken authority in this manner 
is what is generally termed in Europe to lay the 
foundations of freedom. 

The second manner of diminishing the influence 
of authority does not consist in stripping society 
of any of its rights, nor in paralysing its efforts, 
but in distributing the exercise of its privileges in 
various hands, and in multiplying functionaries ^ 
to each of whom the degree of power necessary for 
him to perform his duty is entrusted. There may 
be nations whom this distribution of social powers 
might lead to anarchy ; but in itself it is not anar- 
chical. The action of authority is indeed thus ren- 
dered less irresistible, and less perilous, but it is 
not totally suppressed. 

The revolution of the United States was the re- 
sult of a mature and dignified taste for freedom, 
and not of a vague or ill-defined craving for inde- 
pendence. It contracted no alliance with the tur- 
bulent passions of anarchy; but its course was 
marked, on the contrary, by an attachment to what- 
ever was lawful and orderly. 

It was never assumed in the United States that 



90 

the citizen of a free country has a right to do what- 
ever he pleases ; on the contrary, social obligations 
were there imposed upon him more various than 
anywhere else ; no idea was ever entertained of at- 
tacking the principles, or of contesting the rights 
of society; but the exercise of its authority was 
divided, to the end that the office might be power- 
ful and the officer insignificant, and that the com- 
munity should be at once regulated and free. In 
no country in the world does the law hold so abso- 
lute a language as in America ; and in no country 
is the right of applying it vested in so many hands. 
The administrative power in the United States pre- 
sents nothing either central or hierarchical in its 
constitution, which accounts for its passing unper- 
ceived. The power exists, but its representative is 
not to be perceived. 

We have already seen that the independent town- 
ships of New England protect their own private in- 
terests ; and the municipal magistrates are the per- 
sons to whom the execution of the laws of the State 
is most frequently entrusted \ Besides the general 
laws, the State sometimes passes general police re- 

• See * The Town- Officer/ especially at the words Selectmen, 
Assessors, Collectors^ Schools, Surveyors of Highways. 
I take one example in a t?iousand : the State prohibits travelling 
on the Sunday; the tything-men, who are town-officers, are 
especially charged to keep watch and to execute the law. See 
the Laws of Massachusetts, vol. i. p. 410. 

The selectmen draw up the lists of electors for the election of 
the governor, and transmit the result of the ballot to the secre- 
tary of the State. SeeActofthe24thFeb.l796: /c?.,vol.i.p.488. 



91 

gulations ; but more commonly the townships and 
town-officers, conjointly with the justices of the 
peace, regulate the minor details of social life, ac- 
cording to the necessities of the different localities, 
and promulgate such enactments as concern the 
health of the community, and the peace as well as 
morality of the citizens ^ Lastly, these municipal 
magistrates provide, of their own accord and with- 
out any delegated powers, for those unforeseen emer- 
gencies which frequently occur in society**. 

It results from what we have said, that in the State 
of Massachusetts the administrative authority is 
almost entirely restricted to the township', but that 
it is distributed among a great number of indivi- 
duals. In the French commune there is properly but 
one official functionary, namely, the Maire ; and in 
New England we have seen that there are nineteen. 
These nineteen functionaries do not in general de- 
pend upon one another. The law carefully pre- 
scribes a circle of action to each of these magi- 

* Thus, for instance, the selectmen authorize the construction 
of drains, point out the proper sites for slaughter-houses and 
other, trades which are a nuisance to the neighbourhood. See 
the Act of the 7th June 1785: Id.y vol. i. p. 193. 

2 The selectmen take measures for the security of the public 
in case of contagious diseases, conjointly with the justices of the 
peace. See Act of the 22nd June 1797 : vol. i. p. 539. 

3 I say almost, for there are various circumstances in the annals 
of a township which are regulated by the justice of the peace in 
his individual capacity, or by the justices of the peace assembled 
in the chief town of the county ; thus licenses are granted by the 
justices. See the Act of the 28th Feb. 1787 : vol. i. p. 297. 



92 

strates ; and within that circle they have an entire 
right to perform their functions independently of 
any other authority. Above the township scarcely 
any trace of a series of official dignities is to be found. 
It sometimes happens that the county officers alter 
a decision of the townships, or town magistrates ^ 
but in general the authorities of the county have no 
right to interfere with the authorities of the town- 
ship^, except in such matters as concern the county. 
The magistrates of the township, as well as those 
of the county, are bound to communicate their acts 
to the central government in a very small number 
of predetermined cases \ But the central govern- 
ment is not represented by an individual whose 
business it is to publish police regulations and or- 
donnances enforcing the execution of the laws ; to 
keep up a regular communication with the officers of 

1 Thus licenses are only granted to such persons as can pro- 
duce a certificate of good conduct from the selectmen. If the 
selectmen refuse to give the certificate, the party may appeal to 
the justices assembled in the Court of Sessions ; and they may 
grant the license. See Act of 12th March 1808: vol. ii. p. 186. 

The townships have the right to make by-laws, and to enforce 
them by fines which are fixed by law ; but these by-laws must 
be approved by the Court of Sessions. See Act of 23rd March 
1786:vol. i. p. 254. 

^ In Massachusetts the county magistrates are frequently called 
upon to investigate the acts of the town magistrates; but it will 
be shown further on that this investigation is a consequence, not 
of their administrative, but of their judicial power. 

5 The town committees of schools are obliged to make an 
annual report to the secretary of the State on the condition of the 
school. See Act of 10th March 1827 : vol. iii. p. 183. 



93 

the township and the county; to inspect their con- 
duct, to direct their actions, or to reprimand their 
faults. There is no point which serves as a centre 
to the radii of the administration. 

What, then, is the uniform plan on which the go- 
vernment is conducted, and how is the compliance 
of the counties and their magistrates, or the town- 
ships and their officers, enforced ? In the States of 
New England the legislative authority embraces 
more subjects than it does in France ; the legislator 
penetrates to the very core of the administration ; 
the law descends to the most minute details ; the 
same enactment prescribes the principle and the 
method of its application, and thus imposes a multi- 
tude of strict and rigorously defined obligations on 
the secondary functionaries of the State. The con- 
sequence of this is, that if all the secondary func- 
tionaries of the administration conform to the law, 
society in all its branches proceeds with the great- 
est uniformity : the difficulty remains of compelling 
the secondary functionaries of the administration to 
conform to the law. It may be affirmed, that, in 
general, society has only two methods of enforcing 
the execution of the laws at its disposal : a discre- 
tionary power may be entrusted to a superior func- 
tionary of directing all the others, and of cashiering 
them in case of disobedience ; or the courts of jus- 
tice may be authorized to inflict judicial penalties 
on the offender : but these two methods are not 
always available. 



94 

The right of directing a civil officer presupposes 
that of cashiering him if he does not obey orders, 
and of rewarding him by promotion if he fulfils 
his duties with propriety. But an elected magi- 
strate can neither be cashiered nor promoted. All 
elective functions are inalienable until their term 
is expired. In fact, the elected magistrate has 
nothing either to expect or to fear from his con- 
stituents : and when all public offices are filled by 
ballot, there can be no series of official dignities, 
because the double right of commanding and of 
enforcing obedience can never be vested in the 
same individual, and because the power of issuing 
an order can never be joined to that of inflicting a 
punishment or bestowing a reward. 

The communities therefore in which the second- 
ary functionaries of the government are elected, are 
perforce obliged to make great use of judicial penal- 
ties as a means of administration. This is not evi- 
dent at first sight ; for those in power are apt to 
look upon the institution of elective functionaries as 
one concession, and the subjection of the elected 
magistrate to the judges of the land as another. 
They are equally averse to both these innovations ; 
and as they are more pressingly solicited to grant 
the former than the latter, they accede to the elec- 
tion of the magistrate, and leave him independent 
of the judicial power. Nevertheless, the second of 
these measures is the only thing that can possibly 
counterbalance the first ; and it will be found that 



95 

an elective authority which is not subject to judi- 
cial power will; sooner or later, either elude all 
control or be destroyed. The courts of justice are 
the only possible medium between the central power 
and the administrative bodies : they alone can com- 
pel the elected functionary to obey, without viola- 
ting the rights of the elector. The extension of 
judicial power in the political world ought therefore 
to be in the exact ratio of the extension of elective 
offices : if these two institutions do not go hand in 
hand, the State must fall into anarchy or into sub- 
jection. 

It has always been remarked that habits of legal 
business do not render men apt to the exercise of 
administrative authority. The Americans have bor- 
rowed from the English, their fathers, the idea of 
an institution which is unknown upon the conti- 
nent of Europe : I allude to that of the Justices of 
the Peace. 

The Justice of the Peace is a sort of mezzo ter- 
mine between the magistrate and the man of the 
world, between the civil officer and the judge. A 
justice of the peace is a well-informed citizen, 
though he is not necessarily versed in the know- 
ledge of the laws. His office simply obliges him to 
execute the police regulations of society ; a task in 
which good sense and integrity are of more avail 
than legal science. The justice introduces into 
the administration a certain taste for established 
forms and publicity, which renders him a most un- 



96 

serviceable instrument of despotism ; and, on the 
other hand, he is not Winded by those supersti- 
tions which render legal officers unfit members of 
a government. The Americans have adopted the 
system of the English justices of the peace, but 
they have deprived it of that aristocratic cha- 
racter which is discernible in the mother- country. 
The Governor of Massachusetts ^ appoints a certain 
number of justices of the peace in every county, 
whose functions last seven years'. He further de- 
signates three individuals from amongst the whole 
body of justices, who form in each county what is 
called the Court of Sessions. The Justices take a 
personal share in public business ; they are some- 
times entrusted with administrative functions in 
conjunction with elected officers'; they sometimes 
constitute a tribunal, before which the magistrates 
summarily prosecute a refractory citizen, or the 
citizens inform against the abuses of the magistrate. 
But it is in the Court of Sessions that they exercise 

1 We shall hereafter learn what a Governor is : I shall content 
myself with remarking in this place that he represents the execu- 
tive power of the whole State. 

2 See the Constitution of Massachusetts, Chap. II. sect 1. § 9; 
Chap. III. § 3. 

3 Thus, for example, a stranger arrives in a township from a 
country where a contagious disease prevails, and he falls ill. Two 
justices of the peace can, with the assent of the selectmen, order 
the sheriff of the county to remove and take care of him. Act of 
22nd June 1797. vol. i. p. 540. 

In general the justices interfere in all the important acts of the 
administration, and give them a semi-judicial character. 



97 

their most important functions. This court meets 
twice a year in the county town ; in Massachusetts 
it is empowered to enforce the obedience of the 
greater number^ of pubhc officers^. It must be 
observed, that in the State of Massachusetts the 
Court of Sessions is at the same time an admini- 
strative body, properly so called, and a poUtical tri- 
bunal. It has been asserted that the county is a 
purely administrative division. The Court of Ses- 
sions presides over that small number of affairs 
which, as they concern several townships, or all 
the townships of the county in common, cannot 
be entrusted to any one of them in particular'. 
In all that concerns county business, the duties of 
the Court of Sessions are purely administrative ; 
and if in its investigations it occasionally borrows 
the forms of judicial procedure, it is only with a 

J I say the greater number, because certain administrative mis- 
demeanours are brought before ordinary tribunals. If, for instance, 
a township refuses to make the necessary expenditure for its 
schools, or to name a school-committee, it is liable to a heavy fine. 
But this penalty is pronounced by the Supreme Judicial Court or 
the Court of Common Pleas. See Act of 10th March 1827, Laws 
of Massachusetts, vol. iii. p. 190. Or when a township neglects 
to provide the necessary war-stores. Act of 21st February 1822, 
Id. vol. ii. p. 570. 

2 In their individual capacity the Justices of the Peace take a 
part in the business of the counties and townships. 

3 These aflfairs may be brought under the following heads : 1. The 
erection of prisons and courts of justice. 2. The county budget, 
which is afterwards voted by the State. 3. The distribution of 
the taxes so voted. 4. Grants of certain patents. 5. The laying 
down and repairs of the county roads. 

VOL. I. H 



98 

view to its own information ^ or as a guarantee to 
the community over which it presides. But when 
the administration of the township is brought be- 
fore it, it almost always acts as a judicial body, and 
in some few cases as an official assembly. 

The first difficulty is to procure the obedience of 
an authority as entirely independent of the general 
laws of the State as the township is. We have 
stated that assessors are annually named by the 
town-meetings to levy the taxes. If a township at- 
tempts to evade the payment of the taxes by neg- 
lecting to name its assessors, the Court of Sessions 
condemns it to a heavy penalty^ The fine is le- 
vied on each of the inhabitants ; and the sheriff of 
the county, who is the officer of justice, executes 
the mandate. Thus it is that in the United States 
the authority of the Government is mysteriously 
concealed under the forms of a judicial sentence ; 
and its influence is at the same time fortified by 
that irresistible power with which men have in- 
vested the formalities of law. 

These proceedings are easy to follow, and to un- 
derstand. The demands made upon a township 
are in general plain and accurately defined ; they 
consist in a simple fact, without any complication, 
or in a principle without its application in detail'. 

' Thus, when a road is under consideration, ahnost all difficul- 
ties are disposed of by the aid of the Jury. 

2 See Act of 20th February 1786, Laws of Massachusetts, 
vol. i. p. 217. 

3 There is an indirect method of enforcing the obedience of a 



99 

But the difficulty increases when it is not the obe- 
dience of the township, but that of the town- officers 
which is to be enforced. All the reprehensible ac- 
tions of which a public functionary may be guilty 
are reducible to the following heads : 

He may execute the law without energy or zeal ; 

He may neglect to execute the law ; 

He may do what the law enjoins him not to do. 

The last two violations of duty can alone come 
under the cognizance of a tribunal ; a positive and 
appreciable fact is the indispensable foundation of 
an action at law. Thus, if the selectmen omit to 
fulfil the legal formalities usual at town-elections, 
they may be condemned to pay a fine ' ; but when 
the public officer performs his duty without ability, 
and when he obeys the letter of the law without 
zeal or energy, he is at least beyond the reach of 
judicial interference. The Court of Sessions, even 
when it is invested with its official powers, is in 
this case unable to compel him to a more satisfac- 
fory obedience. The fear of removal is the only 
check to these quasi-ofFences ; and as the Court of 

township. Suppose that the funds which the law demands for the 
maintenance of the roads have not been voted; the town-surveyor 
is then authorized, ex officio, tolexy the supplies. As he is personally- 
responsible to private individuals for the state of the roads, and 
indictable before the Court of Sessions, he is sure to employ the 
extraordinary right which the law gives him against the township. 
Thus by threatening the officer, the Court of Sessions exacts com- 
pliance from the town. See Act of 5th March 1787, Id. vol. i. 
p. 305. 

^ Laws of Massachusetts, vol. ii. p. 45. 

H 2 



100 

Sessions does not originate the town -authorities, it 
cannot remove functionaries whom it does not ap- 
point. Moreover, a perpetual investigation would 
be necessary to convict the officer of negligence or 
lukewarmness ; and the Court of Sessions sits but 
twice a year, and then only judges such offences as 
are brought before its notice. The only security of 
that active and enlightened obedience, which a court 
of justice cannot impose upon public officers, lies in 
the possibility of their arbitrary removal. In France 
this security is sought for in powers exercised by 
the heads of the administration ; in America it is 
sought for in the principle of election. 

Thus, to recapitulate in a few words what I have 
been showing : 

If a public officer in New England commits a 
crime in the exercise of his functions, the ordinary 
courts of justice are always called upon to pass 
sentence upon him. 

If he commits a fault in his official capacity, a 
purely administrative tribunal is empowered to 
punish him ; and, if the affair is important or urgent, 
the judge supplies the omission of the functionary'. 

Lastly, if the same individual is guilty of one of 
those intangible offences, of which human justice 
has no cognizance, he annually appears before a 

^ If, for instance, a township persists in refusing to name its 
assessors, the Court of Sessions nominates them ; and the magi- 
strates thus appointed are invested with the same authority as 
elected officers. See the Act quoted above, 20th Feb. 1787. 



101 

tribunal from which there is no appeal, which can 
at once reduce him to insignificance, and deprive 
him of his charge. This system undoubtedly pos- 
sesses great advantages, but its execution is at- 
tended with a practical difficulty which it is impor- 
tant to point out. 

I have already observed that the administrative 
tribunal, which is called the Court of Sessions, has 
no right of inspection over the town-officers. It 
can only interfere when the conduct of a magistrate 
is specially brought under its notice ; and this is the 
delicate part of the system. The Americans of 
New England are unacquainted with the office of 
public prosecutor in the Court of Sessions \ and it 
may readily be perceived that it could not have 
been estabUshed without difficulty. If an accusing 
magistrate had merely been appointed in the chief 
town of each county, and if he had been unassisted 
by agents in the townships, he would not have been 
better acquainted with what was going on in the 
county than the members of the Court of Sessions. 
But to appoint agents in each township would have 
been to centre in his person the most formidable 
of powers, that of a judicial administration. More- 
over, laws are the children of habit, and nothing 
of the kind exists in the legislation of England. 
The Americans have therefore divided the offices 

' I say the Court of Sessions, because in common courts there 
is a magistrate who exercises some of the functions of a public 
prosecutor. 



102 

of inspection and of prosecution as well as all 
the other functions of the administration. Grand- 
jurors are bound by the law to apprize the court to 
which they belong of all the misdemeanours which 
may have been committed in their county \ There 
are certain great offences which are officially pro- 
secuted by the State*; but more frequently the 
task of punishing delinquents devolves upon the 
fiscal officer, whose province it is to receive the 
fine : thus the treasurer of the township is charged 
with the prosecution of such administrative offences 
as fall under his notice. But a more especial ap- 
peal is made by American legislation to the private 
interest of the citizen' ; and this great principle is 
constantly to be met with in studying the laws of the 
United States. American legislators are more apt 
to give men credit for intelligence than for honesty ; 
and they rely not a little on personal cupidity for 
the execution of the laws. When an individual is 
really and sensibly injured by an administrative 
abuse, it is natural that his personal interest should 
induce him to prosecute. But if a legal formality 

* The Grand-jurors are, for instance, bound to inform the court 
of the bad state of the roads. Laws of Massachusetts, vol. i. 
p. 308. 

2 If, for instance, the treasurer of the county holds back his 
accounts. Laws of Massachusetts, vol. i. p. 406. 

3 Thus, if a private individual breaks down or is wounded in 
consequence of the badness of a road, he can sue the township 
or the county for damages at the sessions. Laws of Massa- 
chusetts, vol. i. p. 309. 



103 

be required, which, however advantageous to the 
community, is of small importance to individuals, 
plaintiffs may be less easily found ; and thus, by 
a tacit agreement, the laws may fall into disuse. 
Reduced by their system to this extremity, the 
Americans are obliged to encourage informers by 
bestowing on them a portion of the penalty in cer- 
tain cases ^; and to ensure the execution of the laws 
by the dangerous expedient of degrading the morals 
of the people. 

The only administrative authority above the 
county magistrates is, properly speaking, that of 
the Government. 



GENERAL REMARKS ON THE ADMINISTRATION OF 
THE UNITED STATES. 

Differences of the States of the Union in their system of admi- 
nistration. — Activity and perfection of the local authorities 
decreases towards the South. — Power of the magistrate in- 
creases ; that of the elector diminishes. — Administration passes 
from the township to the county. — States of New York: Ohio : 
Pennsylvania. — Principles of administration applicable to the 
whole Union. — Election of public officers, and inalienability of 
their functions. — Absence of gradation of ranks. — Introduction 
of judicial resources into the administration. 

I HAVE already premised that after having exa- 
mined the constitution of the township and the 
county of New England in detail, I should take a 

' In cases of invasion or insurrection, if the town- officers 
neglect to furnish the necessary stores and ammunition for the 
militia, the township may be condemned to a fine of from 200 to 



104 

general view of the remainder of the Union. Town- 
ships and a local activity exist in every State ; but in 
no part of the confederation is a township to be 
met with precisely similar to those of New England. 
The more we descend towards the South, the less 
active does the business of the township or parish be- 
come ; the number of magistrates, of functions, and 
of rights decreases ; the population exercises a less 
immediate influence on affairs ; town-meetings are 
less frequent, and the subjects of debate less nume- 
rous. The power of the elected magistrate is aug- 
mented, and that of the elector diminished, whilst 
the public spirit of the local communities is less 
.awakened and less influentiar. These differences 
may be perceived to a certain extent in the State of 

500 dollars. It may readily be imagined that in such a case 
it might happen that no one cared to prosecute ; hence the law 
adds that all the citizens may indict offences of this kind, and 
that half the fine shall belong to the plaintiff. See Act of 6th 
March 1810, vol. ii. p. 236. The same clause is frequently to 
be met with in the Laws of Massachusetts. Not only are pri- 
vate individuals thus incited to prosecute the public officers, but 
the public ofiicers are encouraged in the same manner to bring 
the disobedience of private individuals to justice. If a citizen 
refuses to perform the work which has been assigned to him upon 
a road; the road- surveyor may prosecute him, and he receives 
half the penalty for himself. See the Laws above quoted, vol. i. 
p. 308. 

^ For details see the Revised Statutes of the State of New York, 
Part I. chap. xi. Vol. i. pp. 336-364., entitled, * Of the powers, 
duties, and privileges of towns.' 

See in the Digest of the Laws of Pennsylvania, the words 
Assessors, Collector, Constables, Overseer of the Poor, 
Supervisors of Highways ; and in the Acts of a general nature 



105 

New York ; they are very sensible in Pennsylvania ; 
but they become less striking as we advance to the 
North-west. The majority of the emigrants who 
settle in the north-western States are natives of 
New England, and they carry the habits of their 
mother-country with them into that which they 
adopt. A township in Ohio is by no means dissi- 
milar from a township in Massachusetts. 

We have seen that in Massachusetts the main- 
spring of public administration lies in the township. 
It forms the common centre of the interests and 
affections of the citizens. But this ceases to be the 
case as we descend to States in which knowledge 
is less generally diffused, and where the township 
consequently offers fewer guarantees of a wise and 
active administration. As we leave New England, 
therefore, we find that the importance of the town 
is gradually transferred to the county, which be- 
comes the centre of administration, and the inter- 
mediate power between the Government and the 
citizen. In Massachusetts the business of the 
county is conducted by the Court of Sessions, which 
is composed of a quorum named by the Governor 
and his council ; but the county has no represen- 
tative assembly, and its expenditure is voted by the 
national legislature. In the great State of New York, 

of the State of Ohio, the Act of the 25th February 1834, relating 
to townships, p. 412 ; besides the peculiar dispositions relating to 
divers town- officers, such as Township's Clerk, Trustees, Over- 
seers of the Poor, Fence-viewers, Appraisers of Property, Town 
ship's Treasurer, Constables, Supervisors of Highways. 



106 . 

on the contrary, and in those of Ohio and Penn- 
sylvania, the inhabitants of each county choose 
a certain number of representatives, who consti- 
tute the assembly of the county \ The county 
assembly has the right of taxing the inhabitants to 
a certain extent ; and in this respect it enjoys the 
privileges of a real legislative body : at the same 
time it exercises an executive power in the county, 
frequently directs the administration of the town- 
ships, and restricts their authority within much nar- 
rower bounds than in Massachusetts. 

Such are the principal differences which the sy- 
stems of county and town administration present 
in the Federal States. Were it my intention to 
examine the provisions of American law minutely, 
I should have to point out still further differences 
in the executive details of the several communities. 
But what I have already said may suffice to show 
the general principles on which the administration 
of the United States rests. These principles are dif- 
ferently applied ; their consequences are more or 
less numerous in various localities; but they are 
always substantially the same. The laws differ, and 

• See the Revised Statutes of the State of New York, Part I, 
chap. xi. vol. i. p. 340. Id., chap. xii. p. 366. ; also in the Acts 
of the State of Ohio, an act relating to county commissioners, 
25th February 1824, p. 263. See the Digest of the Laws of 
Pennsylvania, at the words County-rates and Levies, p. 170. 

In the State of New York each township elects a representa- 
tive, who has a share in the administration of the county as well 
as in that of the township. 



. 107 

their outward features change, but their character 
does not vary. If the township and the county are 
not everywhere constituted in the same manner, it 
is at least true that in the United States the county 
and the township are always based upon the same 
principle, namely, that every one is the be^t judge 
of what concerns himself alone, and the most pro- 
per person to supply his private wants. The town- 
ship and the county are therefore bound to take 
care of their special interests : the State governs, 
but it does not interfere with their administration. 
Exceptions to this rule may be met with, but not 
a contrary principle. 

The first consequence of this doctrine has been 
to cause all the magistrates to be chosen either by, 
or at least from amongst, the citizens. As the 
officers are everywhere elected, or appointed for a 
certain period, it has been impossible to establish 
the rules of a dependent series of authorities ; there 
are almost as many independent functionaries as 
there are functions, and the executive power is dis- 
seminated in a multitude of hands. Hence arose 
the indispensable necessity of introducing the con- 
trol of the courts of justice over the administra- 
tion, and the system of pecuniary penalties, by 
which the secondary bodies and their representa- 
tives are constrained to obey the laws. This sy- 
stem obtains from one end of the Union to the 
other. The power of punishing the misconduct of 
public officers, or of performing the part of the ex- 



108 

ecutive, in urgent cases, has not, however, been 
bestowed on the same judges in all the States. The 
Anglo-Americans derived the institution of Justices 
of the Peace from a common source ; but although 
it exists in all the States, it is not always turned to 
the same use. The justices of the peace everywhere 
participate in the administration of the townships 
and the counties \ either as public officers or as 
the judges of public misdemeanours, but in most 
of the States the more important classes of public 
offences come under the cognizance of the ordinary 
tribunals. 

The election of public officers, or the inaliena- 
bility of their functions, the absence of a grada- 
tion of powers, and the introduction of a judicial 
control over the secondary branches of the admi- 
nistration, are the universal characteristics of the 
American system from Maine to the Floridas. 
In some States (and that of New York has ad- 
vanced most in this direction) traces of a centralized 
administration begin to be discernible. In the 
State of New York the officers of the central go- 
vernment exercise, in certain cases, a sort of in- 
spection or control over the secondary bodies*. 

' In some of the Southern States the county- courts are charged 
with all the details of the administration. See the Statutes of 
the State of Tennessee, arts. Judiciary, Taxes, &c. 

2 For instance, the direction of public instruction centres in 
the hands of the Government. The legislature names the mem- 
bers of the University, who are denominated Regents ; the Go- 
vernor and Lieutenant-Governor of the State are necessarily of 



109 

At other times they constitute a court of appeal 
for the decision of affairs ^ . In the State of New 
York judicial penalties are less used than in other 
parts as a means of administration ; and the right 
of prosecuting the offences of public officers is vest- 

the number. Revised Statutes, vol. i. p. 455. The Regents of 
the University annually visit the colleges and academies, and 
make their report to the legislature. Their superintendence is not 
inefficient, for several reasons : the colleges in order to become cor- 
porations stand in need of a charter, which is only granted on 
the recommendation of the Regents : every year funds are dis- 
tributed by the State for the encouragement of learning, and 
the Regents are the distributors of this money. See Chap. xv. 
•Public Instruction,' Revised Statutes, vol. i. p. 455. 

The school- commissioners are obliged to send an annual report 
to the Superintendent of the Republic. Id., p. 488. 

A similar report is annually made to the same person on the 
number and condition of the poor. Id., p. 631. 

* If any one conceives himself to be wronged by the school- 
commissioners (who are town-officers), he can appeal to the su- 
perintendent of the primary schools, whose decision is final. 
Revised Statutes, vol. i. p. 487. 

Provisions similar to those above cited are to be met with from 
time to time in the laws of the State of New York ; but in ge- 
neral these attempts at centralization are weak and unproduc- 
tive. The great authorities of the State have the right of watch- 
ing and controlling the subordinate agents, without that of re- 
warding or punishing them. The same individual is never em- 
powered to give an order and to punish disobedience; he has 
therefore the right of commanding, without the means of exact- 
ing compliance. In 1830 the Superintendent of Schools com- 
plained in his Annual Report addressed to the legislature, that 
several school- commissioners had neglected, notwithstanding 
his application, to furnish him with the accounts which were 
due. He added that if this omission continued, he should be 
obliged to prosecute them, as the law directs, before the proper 
tribunals. 



no 

ed in fewer hands \ The same tendency is faintly 
observable in some other States'^; but in general 
the prominent feature of the administration in the 
United States is its excessive local independence. 



OF THE STATE. 



I HAVE described the townships and the admini- 
stration ; it now remains for me to speak of the 
State and the Government. This is ground I may 
pass over rapidly, without fear of being misunder- 
stood ; for all I have to say is to be found in writ- 
ten forms of the various constitutions, which are 
easily to be procured*. These constitutions rest 
upon a simple and rational theory ; their forms 
have been adopted by all constitutional nations, 
and are become familiar to us. 

In this place, therefore, it is only necessary for 
me to give a short analysis ; I shall endeavour 
afterwards to pass judgement upon what I now 
describe. 

' Thus the district- attorney is directed to recover all fines be- 
low the sum of fifty dollars, unless such a right has been spe- 
cially awarded to another magistrate. Revised Statutes, vol. i. 
p. 383. 

2 Several traces of centralization may be discovered in Massa- 
chusetts ; for instance, the committees of the town-schools are 
directed to make an annual report to the Secretary of State. See 
Laws of Massachusetts, vol. i. p. 367. 

' See, at the end of the volume, the text of the Constitution 
of New York. 



Ill 



LEGISLATIVE POWER OF THE STATE. 

Division of the Legislative Body into two Houses. — Senate.— 
House of Representatives. — Different functions of these two 
Bodies. 

The legislative power of the State is vested in 
two assemblies, the first of which generally bears 
the name of the Senate. 

The Senate is commonly a legislative body ; 
but it sometimes becomes an executive and judi- 
cial one. It takes a part in the government in 
several ways, according to the constitution of the 
different States^ ; but it is in the nomination of 
public functionaries that it most commonly as- 
sumes an executive power. 

It partakes of judicial power in the trial of cer- 
tain political offences, and sometimes also in the 
decision of certain civil cases*. 

The number of its members is always small. 
The other branch of the legislature, which is usual- 
ly called the House of Representatives, has no share 
whatever in the administration, and only takes a 
part in the judicial power in as much as it im- 
peaches public functionaries before the Senate. 

The members of the two Houses are nearly every- 
where subject to the same conditions of election. 

• In Massachusetts the Senate is not invested with any ad- 
ministrative functions. 

2 As in the State of New York. See the Constitution at the 
end of the Volume. 



112 

They are chosen in the same manner, and by the 
same citizens. 

The only difference which exists between them 
is, that the term for which the Senate is chosen is 
in general longer than that of the House of Re- 
presentatives. The latter seldom remain in office 
longer than a year ; the former usually sit two or 
three years. 

By granting to the senators the privilege of being 
chosen for several years, and being renewed seria- 
tim, the law takes care to preserve in the legisla- 
tive body a nucleus of men already accustomed to 
public business, and capable of exercising a salu- 
tary influence upon the junior members. 

The Americans, plainly, did not desire, by this 
separation of the legislative body into two branches, 
to make one house hereditary, and the other elective ; 
one aristocratic, and the other democratic. It was 
not their object to create in the one a bulwark to 
power, whilst the other represented the interests 
and passions of the people. The only advantages 
which result from the present constitution of the 
United States are, the division of the legislative 
power, and the consequent check upon political 
assemblies ; with the creation of a tribunal of ap- 
peal for the revision of the laws. 

Timeand experience, however, have convinced the 
Americans that if these are its only advantages, the 
division of the legislative power is still a principle of 
the greatest necessity. Pennsylvania was the only 



113 

one of the United States which at first attempted to 
establish a single House of Assembly ; and Frank- 
lin himself was so far carried away by the necessary 
consequences of the principle of the sovereignty of 
the people, as to have concurred in the measure : 
bat the Pennsylvanians were soon obliged to change 
the law, and to create two Houses. Thus the prin- 
ciple of the division of the legislative power was 
finally established, and its necessity may hence- 
forward be regarded as a demonstrated truth. 

This theory, which was nearly unknown to the 
republics of antiquity, — which was introduced into 
the world almost by accident, like so many other 
great truths, — and misunderstood by several mo- 
dern nations, is at length become an axiom in the 
political science of the present age. 



THE EXECUTIVE POWER OF THE STATE. 

Office of Governor in an American State. — ^The place he occupies 
in relation to the Legislature. — His rights and his duties. — 
His dependence on the people. 

The executive power of the State may with truth 
be said to be represented by the Governor, although 
he enjoys but a portion of its rights. The supreme 
magistrate, under the title of Governor, is the offi- 
cial moderator and counsellor of the legislature. He 
is armed with a veto or suspensive power, which 
allows him to stop, or at least to retard, its move- 
ments at pleasure. He lays the wants of the couti- 

VOL. I. I 



114 

try before the legislative body, and points out the 
means which he thinks may be usefully employed in 
providing for them ; he is the natural executor of 
its decrees in all the undertakings which interest 
the nation at large \ In the absence of the legis- 
lature, the Governor is bound to take all necessary 
steps to guard the State against violent shocks and 
unforeseen dangers. 

The whole military power of the State is at the 
disposal of the Governor. He is the commander of 
the militia, and head of the armed force. When 
the authority which is by general consent awarded 
to the laws is disregarded, the Governor puts him- 
self at the head of the armed force of the State, to 
quell resistance and to restore order. 

Lastly, the Governor takes no share in the ad- 
ministration of townships and counties, except it 
be indirectly in the nomination of Justices of the 
Peace, which nomination he has not the power to 
canceP. • 

The Governor is an elected magistrate, and is 
generally chosen for one or two years only ; so 
that he always continues to be strictly dependent 
upon the majority who returned him. 

^ Practically speaking, it is not always the Governor who 
executes the plans of the legislature ; it often happens that the 
latter, in voting a measure, names special agents to superintend 
the execution of it. 

2 In some of the States the justices of the peace are not elected 
by the Governor. 



115 



POLITICAL EFFECTS OF THE SYSTEM OF LOCAL ADMI- 
NISTRATION IN THE UNITED STATES. 

Necessary distinction between the general centralization of Go- 
vernment, and the centralization of the local administration.— 
Local administration not centralized in the United States ; 
great general centralization of the Government. — Some bad 
consequences resulting to the United States from the local ad- 
ministration. — Administrative advantages attending this order 
of things. — The power which conducts the Government is less 
regular, less enlightened, less learned, but much greater than in 
Europe. — Political advantages of this order of things. — In the 
United States the interests of the country are everywhere 
kept in view. — Support given to the Government by the com- 
munity. — Provincial institutions more necessary in proportion 
as the social condition becomes more democratic— -Reason of 
this. 

Centralization is become a word of general and 
daily use, without any precise meaning being at- 
tached to it. Nevertheless, there exist two distinct 
kinds of centralization, which it is necessary to 
discriminate with accuracy. 

Certain interests are common to all parts of a 
nation, such as the enactment of its general laws, 
and the maintenance of its foreign relations. Other 
interests are peculiar to certain parts of the nation ; 
such, for instance, as the business of different town- 
ships. When the power which directs the general 
interests is centred in one place, or vested in the 
same persons, it constitutes a central government. 
In like manner the power of directing partial or lo- 
cal interests, when brought together into one place, 

I 2 



116 

constitutes what may be termed a central admini- 
stration. 

Upon some points these two kinds of centraliza- 
tion coalesce ; but by classifying the objects which 
fall more particularly within the province of each of 
them, they may easily be distinguished. 
/ It is evident that a central government acquires 
immense power when united to administrative cen- 
tralization. Thus combined, it accustoms men to 
set their own will habitually and completely aside ; 
to submit, not only for once or upon one point, but 
in every respect and at all times. Not only, there- 
fore, does this union of power subdue them compul- 
sorily, but it affects them in the ordinary habits of 
life, and influences each individual, first separately, 
and then collectively. 

These two kinds of centralization mutually assist 
and attract each other ; but they must not be sup- 
posed to be inseparable. It is impossible to imagine 
a more completely central government than that 
which existed in France under Louis XIV. ; when 
the same individual was the author and the inter- 
preter of the laws, and the representative of France 
at home and abroad, he was justified in asserting that 
the State was identified with his person. Neverthe- 
less, the administration was much less centralized 
under Louis XIV. than it is at the present day. 

In England the centralization of the government 
is carried to great perfection : the State has the 
compact vigour of a man, and by the sole act of its 



117 

will it puts immense engines in motion, and wields 
or collects the efforts of its authority. Indeed, I 
cannot conceive that a nation can enjoy a secure 
or prosperous existence without a powerful central- 
ization of government. But I am of opinion that 
a central administration enervates the nations in 
which it exists by incessantly diminishing their 
public spirit. If such an administration succeeds 
in condensing at a given moment on a given point 
all the disposable resources of a people, it impairs 
at least the renewal of those resources. It may en- 
sure a victory in the hour of strife, but it gradually 
relaxes the sinews of strength. It may contribute 
admirably to the transient greatness of a man, but 
it cannot ensure the durable prosperity of a nation. 
If we pay proper attention, we shall find that 
whenever it is said that a State cannot act because 
it has no central point, it is the centralization of 
the government in which it is deficient. It is fre- 
quently asserted, and we are prepared to assent to 
the proposition, that the German empire was never 
able to bring all its powers into action. But the 
reason was, that the State was never able to en- 
force obedience to its general laws, because the 
several members of that great body always claimed 
the right, or found the means, of refusing their 
cooperation to the representatives of the com- 
mon authority, even in the affairs which concerned 
the mass of the people ; in other words, because 
there was no centralization of government. The 



118 

same remark is applicable to the Middle Ages ; the 
cause of all the confusion of feudal society was that 
the control, not only of local but of general in- 
terests, was divided amongst a thousand hands, 
and broken up in a thousand different ways : the 
absence of a central government prevented the 
nations of Europe from advancing with energy in 
any straightforward course. 

We have shown that in the United States no 
central administration and no dependent series of 
public functionaries exist. Local authority has 
been carried to lengths which no European nation 
could endure without great inconvenience, and 
which has even produced some disadvantageous 
consequences in America. But in the United 
States the centralization of the Government is com- 
/ plete ; and it would be easy to prove that the na- 
tional power is more compact than it has ever been 
in the old nations of Europe. Not only is there 
but one legislative body in each State ; not only 
does there exist but one source of political au- 
thority ; but district-assemblies and county-courts 
have not in general been multiplied, lest they 
should be tempted to exceed their administrative 
duties and interfere with the Government. In Ame- 
; rica the legislature of each State is supreme : no- 
/ thing can impede its authority ; neither privileges, 
nor local immunities, nor personal influence, nor 
even the empire of reason, since it represents that 
\ majority which claims to be the sole organ of rea- 



119 

son. Its own determination is, therefore, the only 
limit to its action. In juxta-position to it, and 
under its immediate control^ is the representative 
of the executive power, whose duty it is to con- 
strain the refractory to submit by superior force. 
The only symptom of weakness lies in certain de- 
tails of the action of the Government. The Ameri- 
can republics have no standing armies to intimidate 
a discontented minority ; but as no minority has as 
yet been reduced to declare open war, the neces- 
sity of an army has not been felt. The State usu- 
ally employs the officers of the township or the 
county to deal with the citizens. Thus, for in- 
stance, in New England the assessor fixes the rate 
of taxes ; the collector receives them ; the town- 
treasurer transmits the amount to the public trea- 
sury ; and the disputes which may arise are brought 
before the ordinary courts of justice. This me- 
thod of collecting taxes is slow as well as incon- 
venient, and it would prove a perpetual hindrance 
to a Government whose pecuniary demands were 
large. It is desirable that in whatever materially 
affects its existence, the Government should be 
served by officers of its own, appointed by itself, 
removeable at pleasure, and accustomed to rapid 
methods of proceeding. But it will always be easy 
for the central government, organized as it is in 
America, to introduce new and more efficacious 
modes of action proportioned to its wants. 

The absence of a central government will not, 



120 

then, as has often been asserted, prove the destruc- 
tion of the republics of the New World ; far from 
supposing that the American governments are not 
sufficiently centralized, I shall prove hereafter that 
they are too much so. The legislative bodies daily 
encroach upon the authority of the Government, 
and their tendency, like that of the French Con- 
vention, is to appropriate it entirely to themselves. 
Under these circumstances the social power is con- 
stantly changing hands, because it is subordinate 
to the power of the people, which is too apt to for- 
get the maxims of wisdom and of foresight in the 
consciousness of its strength : hence arises its dan- 
ger ; and thus its vigour, and not its impotence, will 
probably be the cause of its ultimate destruction. 

The system of local administration produces se- 
veral different effects in America. The Americans 
seem to me to have outstepped the limits of sound 
policy, in isolating the administration of the Go- 
vernment ; for order, even in second-rate affairs, is 
a matter of national importance ^ As the State 
has no administrative functionaries of its own, sta- 

^ The authority which represents the State ought not, I think, 
to waive the right of inspecting the local administration, even 
when it does not interfere more actively. Suppose, for instance, 
that an agent of the Government was stationed at some appointed 
spot in the county, to prosecute the misdemeanours of the town 
and county officers, would not a more uniform order be the re- 
sult, without in any way compromising the independence of the 
township ? Nothing of the kind, however, exists in America : there 
is nothing above the county-courts, which have, as it were, only an 
incidental cognizance of the oifences they are meant to repress. 



121 

tioned on different points of its territory, to whom 
it can give a common impulse, the consequence is 
that it rarely attempts to issue any general police 
regulations. The want of these regulations is se- 
verely felt, and is frequently observed by Euro- 
peans. The appearance of disorder which prevails 
on the surface, leads him at first to imagine that 
society is in a state of anarchy ; nor does he per- 
ceive his mistake till he has gone deeper into the 
subject. Certain undertakings are of importance 
to the whole State ; but they cannot be put in ex- 
ecution, because there is no national administration 
to direct them. Abandoned to the exertions of the 
towns or counties, under the care of elected or 
temporary agents, they lead to no result, or at 
least to no durable benefit. 

The partisans of centralization in Europe are 
wont to maintain that the Government directs the 
affairs of each locality better than the citizens could 
/do it for themselves: this may be true when the 
1 central power is enlightened, and when the local • 
districts are ignorant ; when it is as alert as they ' 
,are slow ; when it is accustomed to act, and they to 
/ obey. Indeed, it is evident that this double ten- 
dency must augment with the increase of centraliza- / 
tion, and that the readiness of the one, and the in- 
capacity of the others, must become more and more 
/prominent. But I deny that such is the case when 
I the people is as enlightened, as awake to its inter- 
/ ests, and as accustomed to reflect on them, as the 



122 

Americans are. I am persuaded, on the contrarvy 
that in this case the collective strength of the citi- 
zens will always conduce more efficaciously to the 
public welfare than the authority of the Govern- 
ment. It is difficult to point out with certainty 
the means of arousing a sleeping population, and 
of giving it passions and knowledge which it does 
not possess ; it is, I am well aware, an arduous 
task to persuade men to busy themselves about 
their own affairs ; and it would frequently be 
easier to interest them in the punctilios of court 
etiquette than in the repairs of their common 
dwelling. But whenever a central administration 
affects to supersede the persons most interested, 
I am inclined to suppose that it is either misled, 
or desirous to mislead. However enlightened and 
however skilful a central power may be, it cannot of 
itself embrace all the details of the existence of a 
great nation. Such vigilance exceeds the powers 
of man. And when it attempts to create and set 
in motion so many complicated springs, it must 
submit to a very imperfect result, or consume itself 
in bootless efforts. 

Centralization succeeds more easily, indeed, in 
subjecting the external actions of men to a cer- 
tain uniformity, which at last commands our re- 
gard, independently of the objects to which it is 
applied, like those devotees who worship the sta- 
' tue, and forget the deity it represents. Centraliza- 
tion imparts without difficulty an admirable regu- 



123 

larity to the routine of business ; provides for the 
details of the social police with sagacity ; represses 
the smallest disorder and the most petty misde- 
meanours ; maintains society in a statu quo aUke 
secure from improvement and decline ; and perpe- 
tuates a drowsy precision in the conduct of affairs, 
which is hailed by the heads of the administration 
as a sign of perfect order and public tranquillity* : 
in short, it excels more in prevention than in ac- 
tion. Its force deserts it when society is to be dis- 
turbed or accelerated in its course ; and if once the 
cooperation of private citizens is necessary to the 
furtherance of its measures, the secret of its impo- 
tence is disclosed. Even whilst it invokes their 
assistance, it is on the condition that they shall act 
exactly as much as the Government chooses, and 
exactly in the manner it appoints. They are to 
take charge of the details, without aspiring to guide 
the system ; they are to work in a dark and sub- 
ordinate sphere, and only to judge the acts in 
which they have themselves cooperated, by their 
results. These, however, are not conditions on 

^ China appears to me to present the most perfect instance of 
that species of well-being which a completely central administra- 
tion may furnish to the nations among which it exists. Tra- 
vellers assure us that the Chinese have peace without happiness, 
industry without improvement, stability without strength, and 
public order without public morality. The condition of society 
is always tolerable, never excellent. I am convinced that, when 
China is opened to European observation, it will be found to con- 
tain the most perfect model of a central administration which 
exists in the universe. 



124 

which the alliance of the human will is to be ob- 
tained; its carriage must be free, and its actions 
responsible, or (such is the constitution of man,) 
the citizen had rather remain a passive spectator 
than a dependent actor in schemes with which he 
is unacquainted. 

It is undeniable, that the want of those uniform 
regulations which control the conduct of every in- 
habitant of France is not unfrequently felt in the 
United States. Gross instances of social indiffer- 
ence and neglect are to be met with ; and from time 
to time disgraceful blemishes are seen, in com- 
plete contrast with the surrounding civilization. 
Useful undertakings which cannot succeed with- 
out perpetual attention and rigorous exactitude, are 
very frequently abandoned in the end ; for in Ame- 
rica as well as in other countries the people is 
subject to sudden impulses and momentary exer- 
tions. The European who is accustomed to find a 
functionary always at hand to interfere with all he 
undertakes, has some difficulty in accustoming him- 
self to the complex mechanism of the administra- 
tion of the townships. In general it may be affirmed 
that the lesser details of the police, which render 
life easy and comfortable, are neglected in Ame- 
rica ; but that the essential guarantees of man 
in society are as strong there as elsewhere. In 
America the power which conducts the Govern- 
ment is far less regular, less enlightened, and less 
learned, but an hundredfold more authoritative 



125 

than in Europe. In no country in the world do 
the citizens make such exertions for the common 
weal : and I am acquainted with no people which 
has established schools as numerous and as effica- 
cious, places of public worship better suited to the 
wants of the inhabitants, or roads kept in better 
repair. Uniformity or permanence of design, the 
minute arrangement of details \ and the perfection 
of an ingenious administration, must not be sought 

' A writer of talent, who, in the comparison which he has drawn 
between the finances of France and those of the United States, 
has proved that ingenuity cannot always supply the place of a 
knowledge of facts, very justly reproaches the Americans for the 
sort of confusion which exists in the accounts of the expenditure 
in the townships ; and after giving the model of a Departmental 
Budget in France, he adds : ** We are indebted to centralization, 
that admirable invention of a great man, for the uniform order and 
method which prevails alike in all the municipal budgets, from 
the largest town to the humblest commune." Whatever may be 
my admiration of this result, when I see the communes of France, 
with their excellent system of accounts, plunged in the grossest 
ignorance of their true interests, and abandoned to so incorrigible 
an apathy that they seem to vegetate rather than to live ; when, 
on the other hand, I observe the activity, the information, and 
the spirit of enterprise which keeps society in perpetual labour, 
in those American townships whose budgets are drawn up with 
small method and with still less uniformity, I am struck by the 
spectacle; for to my mind the encl of a good government is to 
ensure the welfare of a people, and not to establish order and re- 
gularity in the midst of its misery and its distress. I am there- 
fore led to suppose that the prosperity of the American townships 
and the apparent confusion of their accounts, the distress of the 
French communes and the perfection of their Budget, may be 
attributable to the same cause. At any rate I am suspicious of a 
benefit which is united to so many evils, and I am not averse to 
an evil which is compensated by so many benefits. 



126 

for in the United States : but it will be ea^y to find, 
on the other hand, the symptoms of a power, which, 
if it is somewhat barbarous, is at least robust ; and 
of an existence, which is checkered with accidents 
indeed, but cheered at the same time by animation 
and effort. 

Granting for an instant that the villages and 
counties of the United States would be more use- 
fully governed by a remote authority, which they 
had never seen, than by functionaries taken from 
the midst of them, — admitting, for the sake of 
argument, that the country would be more secure, 
and the resources of society better employed, if the 
whole administration centred in a single arm, still 
the political advantages which the Americans derive 
from their system would induce me to prefer it to 
the contrary plan. It profits me but little, after 
all, that a vigilant authority should protect the 
tranquillity of my pleasures, and constantly avert 
all dangers from my path, without my care or my 
concern, if this same authority is the absolute mis- 
tress of my liberty and of my life, and if it so mo- 
nopolizes all the energy of existence, that when it 
languishes everything languishes around it, that 
when it sleeps everything must sleep, that when 
it dies the State itself must perish. ^^ 

In certain countries of Europe the natives con- 
sider themselves as a kind of settlers, indifferent 
to the fate of the spot upon which they live. The 
greatest changes are effected without their con- 



127 

currence, and (unless chance may have apprised 
them of the event,) without their knowledge ; nay 
more, the citizen is unconcerned as to the condition 
of his village, the police of his street, the repairs of 
the church or of the parsonage ; for he looks upon 
all these things as unconnected with himself, and as 
the property of a powerful stranger whom he calls 
the Government. He has only a life-interest in these 
possessions, and he entertains no notions of owner- 
ship or of improvement. This want of interest in 
his own affairs goes so far, that if his own safety 
or that of his children is endangered, instead of 
trying to avert the peril, he will fold his arms, and 
wait till the nation comes to his assistance. This 
same individual who has so completely sacrificed 
his own free will, has no natural propensity to 
obedience ; he cowers, it is true, before the pettiest 
officer ; but he braves the law with the spirit of a 
conquered foe as soon as its superior force is re- 
moved : his oscillations between servitude and li- 
cence are perpetual. When a nation has arrived 
at this state, it must either change its customs and 
its laws, or perish : the source of public virtue is 
dry ; and though it may contain subjects, the race i 
of citizens is extinct. Such communities are a 
natural prey to foreign conquest ; and if they do 
not disappear from the scene of life, it is because 
they are surrounded by other nations similar or 
inferior to themselves : it is because the instinctive 
feeling of their country's claims still exists in their 



128 

hearts ; and because an involuntary pride in the 
name it bears, or a vague reminiscence of its by- 
gone fame, suffices to give them the impulse of 
self-preservation. 

Nor can the prodigious exertions made by tribes 
in the defence of a country to which they did not 
belong be adduced in favour of such a system ; for it 
will be found that in these cases their main incite- 
ment was religion. The permanence, the glory, or 
the prosperity of the nation were become parts of 
their faith ; and in defending the country they inha- 
bited, they defended that Holy City of which they 
were all citizens. The Turkish tribes have never 
taken an active share in the conduct of the affairs 
of society, but they accomplished stupendous en- 
terprises as long as the victories of the Sultan were 
the triumphs of the Mahommedan faith. In the 
present age they are in rapid decay, because their 
religion is departing, and despotism only remains. 
Montesquieu, who attributed to absolute power an 
authority peculiar to itself, did it, as I conceive, an 
undeserved honour ; for despotism, taken by itself, 
can produce no durable results. On close inspec- 
tion we shall find that religion, and not fear, has 
ever been the cause of the long-lived prosperity of 
an absolute government. Whatever exertions may 
be made, no true power can be founded among men 
which does not depend upon the free union of their 
inclinations ; and patriotism or religion are the 
only two motives in the world which can perma- 



129 

nently direct the whole of a body politic to one 
end. 

Laws cannot succeed in rekindling the ardour of 
an extinguished faith ; but men may be interested 
in the fate of their country by the laws. By this 
influence, the vague impulse of patriotism, which 
never abandons the human heart, may be directed 
and revived ; and if it be connected with the 
thoughts, the passions, and the daily habits of life, 
it may be consolidated into a durable and rational 
sentiment. Let it not be said that the time for the 
experiment is already past ; for the old age of na- 
tions is not like the old age of men, and every fresh 
generation is a new people ready for the care of the 
legislator. 

It is not the administrative, but the political ef- 
fects of the local system that I most admire in 
America. In the United States the interests of 
the country are everywhere kept in view ; they are 
an object of solicitude to the people of the whole 
Union, and every citizen is as warmly attached to 
them as if they were his own. He takes pride in 
the glory of his nation ; he boasts of its success, to 
which he conceives himself to have contributed ; 
and he rejoices in the general prosperity by which 
he profits. The feeling he entertains towards the 
State is analogous to that which unites him to his 
family, and it is by a kind of egotism that he in- 
terests himself in the welfare of his country. 

The European generally submits to a public offi- 

VOL. I. K 



130 

cer because he represents a superior force ; but to 
an American he represents a right. In America it 
maybe said that no one renders obedience to man, 
but to justice and to law. If the opinion which the 
citizen entertains of himself is exaggerated, it is at 
least salutary ; he unhesitatingly confides in his 
own powers, which appear to him to be all-suffi- 
cient. When a private individual meditates an 
undertaking, however directly connected it may 
be with the welfare of society, he never thinks 
of soliciting the cooperation of the Government ; 
but he publishes his plan, offers to execute it him- 
self, courts the assistance of other individuals, and 
struggles manfully against all obstacles. Undoubt- 
edly he is often less successful than the State might 
have been in his position ; but in the end, the sum 
of these private undertakings far exceeds all that 
the Government could have done. 

As the administrative authority is within the 
reach of the citizens, whom it in some degree re- 
presents, it excites neither their jealousy nor their 
hatred : as its resources are limited, every one feels 
that he must not rely solely on its assistance. Thus 
when the administration thinks fit to interfere, it is 
not abandoned to itself as in Europe ; the duties of 
the private citizens are not supposed to have lapsed 
because the State assists in their fulfilment ; but 
every one is ready, on the contrary, to guide and 
to support it. This action of individual exertions, 
joined to that of the public authorities, frequently 



131 

performs what the most energetic central admini- 
stration would be unable to execute. It would be 
easy to adduce several facts in proof of what I ad- 
vance, but I had rather give only one, with which I 
am more thoroughly acquainted \ In America, the 
means which the authorities have at their disposal 
for the discovery of crimes and the arrestation of 
criminals are few. A State-pohce does not exist, 
and passports are unknown. The criminal police 
of the United States cannot be compared to that of 
France; the magistrates and public prosecutors are 
not numerous, and the examinations of prisoners 
are rapid and oral. Nevertheless in no country does 
crime more rarely elude punishment. The reason 
is, that every one conceives himself to be interested 
in furnishing evidence of the act committed, and in 
stopping the delinquent. During my stay in the 
United States, I witnessed the spontaneous forma- 
tion of committees for the pursuit and prosecution 
of a man who had committed a great crime in a 
certain county. In Europe a criminal is an un- 
happy being who is struggling for his life against 
the ministers of justice, whilst the population is 
lÉîerely a spectator of the conflict : in America he is 
looked upon as an enemy of the human race, and 
the whole of mankind is against him. 

I believe that provincial institutions are useful 
to all nations, but nowhere do they appear to me 
to be more indispensable than amongst a democra- 
' See Appendix, I. 

k2 



132 

tic people. In an aristocracy, order can always be 
maintained in the midst of liberty ; and as the rulers 
have a great deal to lose, order is to them a first- 
rate consideration. In like manner an aristocracy 
protects the people from the excesses of despotism, 
because it always possesses an organized power 
ready to resist a despot. But a democracy with- 
out provincial institutions has no security against 
these evils. How can a populace, unaccustomed 
to freedom in small concerns, learn to use it tem- 
perately in great affairs ? What resistance can be 
offered to tyranny in a country where every private 
individual is impotent, and where the citizens are 
united by no common tie ? Those who dread the 
licence of the mob, and those who fear the rule of 
absolute powder, ought alike to desire the progres- 
sive growth of provincial liberties. 

On the other hand, I am convinced that demo- 
cratic nations are most exposed to fall beneath the 
yoke of a central administration, for several rea- 
sons, amongst which is the following. 

The constant tendency of these nations is to con- 
centrate all the strength of the Government in the 
hands of the only power which directly represents 
the people ; because, beyond the people nothing is 
to be perceived but a mass of equal individuals 
confounded together. But when the same power is 
already in possession of all the attributes of the Go- 
vernment, it can scarcely refrain from penetrating 
into the details of the administration, and an oppor- 



133 

tunity of doing so is sure to present itself in the end, 
as was the case in France. In the French Revolution 
there were two impulses in opposite directions, which 
must never be confounded ; the one was favourable 
to liberty, the other to despotism. Under the ancient 
monarchy the King was the sole author of the laws ; 
and below the power of the Sovereign, certain ves- 
tiges of provincial institutions, half-destroyed, were 
still distinguishable. These provincial institutions 
were incoherent, ill compacted, and frequently ab- 
surd; in the hands of the aristocracy they had some- 
times been converted into instruments of oppres- 
sion. The Revolution declared itself the enemy of 
royalty and of provincial institutions at the same 
time ; it confounded all that had preceded it — de- 
spotic power and the checks to its abuses — in in- 
discriminate hatred ; and its tendency was at once to 
overthrow and to centralize. This double cha- 
racter of the French Revolution is a fact which has 
been adroitly handled by the friends of absolute 
power. Can they be accused of labouring in the 
cause of despotism, when they are defending that 
central administration which was one of the great 
innovations of the Revolution^? In this manner 
popularity may be conciliated with hostility to the 
rights of the people, and the secret slave of tyranny 
may be the professed admirer of freedom. 

I have visited the two nations in which the sy- 
stem of provincial liberty has been most perfectly 

1 See Appendix, K. 



134 

established, and I have listened to the opinions of 
different parties in those countries. In America I 
met with men who secretly aspired to destroy the 
democratic institutions of the Union ; in England 
I found others who attacked the aristocracy openly; 
but I know of no one who does not regard provin- 
cial independence as a great benefit. In both 
countries I have heard a thousand different causes 
assigned for the evils of the State ; but the local 
system was never mentioned amongst them. I 
have heard citizens attribute the power and pro- 
sperity of their country to a multitude of reasons ; 
but they all placed the advantages of local institu- 
tions in the foremost rank. 

Am I to suppose that when men who are natu- 
rally so divided on religious opinions, and on poli- 
tical theories, agree on one point, (and that, one of 
which they have daily experience,) they are all in 
error ? The only nations which deny the utility of 
provincial liberties are those which have fewest of 
them ; in other words, those who are unacquainted 
with the institution are the only persons who pass 
a censure upon it. 



135 



CHAPTER VI. 

JUDICIAL POWER IN THE UNITED STATES, AND ITS 
INFLUENCE ON POLITICAL SOCIETY. 

The Anglo-Americans have retained the characteristics of judi- 
cial power which are common to all nations. — They have, how- 
ever, made it a powerful political organ. — How. — In what the 
judicial system of the Anglo-Americans differs from that of 
all other nations. — Why the American judges have the right 
of declaring the laws to be unconstitutional. — How they use 
this right. — Precautions taken by the legislator to prevent its 
abuse. 

I HAVE thought it essential to devote a separate 
chapter to the judicial authorities of the United 
States, lest their great political importance should 
be lessened in the reader's eyes by a merely inci- 
dental mention of them. Confederations have ex- 
isted in other countries beside America ; and re- 
publics have not been established upon the shores 
of the New World alone : the representative sj^- 
stem of government has been adopted in several 
States of Europe ; but I am not aware that any na- 
tion of the globe has hitherto organized a judicial 
power on the principle now adopted by the Ameri- 
cans, The judicial organization of the United 
States is the institution which a stranger has the 
greatest difficulty in understanding. He hears the 



136 

authority of a judge invoked in the political occur- 
rences of every day, and he naturally concludes 
that in the United States the judges are important 
political functionaries : nevertheless, when he ex- 
amines the nature of the tribunals, they offer no- 
thing which is contrary to the usual habits and pri- 
vileges of those bodies ; and the magistrates seem 
to him to interfere in public affairs by chance, but 
by a chance which recurs every day. 

When the Parliament of Paris remonstrated, or 
refused to enregister an edict, or when it summoned 
a functionary accused of malversation to its bar, its 
political influence as a judicial body was clearly 
visible ; but nothing of the kind is to be seen in 
the United States. The Americans have retained 
all the ordinary characteristics of judicial autho- 
rity, and have carefully restricted its action to the 
ordinary circle of its functions. 

The first characteristic of judicial power in all 
nations is the duty of arbitration. But rights must 
be contested in order to warrant the interference 
of a tribunal ; and an action must be brought to 
obtain the decision of a judge. As long, therefore, 
as a law is uncontested, the judicial authority is not 
called upon to discuss it, and it may exist without 
being perceived. When a judge in a given case at- 
tacks a law relating to that case, he extends the 
circle of his customary duties, without however 
stepping beyond it ; since he is in some measure 
obliged to decide upon the law, in order to decide 



137 

the case. But if he pronounces upon a law with- 
out resting upon a case, he clearly steps beyond 
his sphere, and invades that of the legislative au- 
thority. 

The second characteristic of judicial power is 
that it pronounces on special cases, and not upon 
general principles. If a judge in deciding a parti- 
cular point destroys a general principle, by pass- 
ing a judgement which tends to reject all the infer- 
ences from that principle, and consequently to an- 
nul it, he remains within the ordinary limits of his 
functions. But if he directly attacks a general 
principle without having a particular case in view, 
he leaves the circle in which all nations have agreed 
to confine his authority ; he assumes a more im- 
portant, and perhaps a more useful influence than 
that of the magistrate, but he ceases to be a repre- 
sentative of the judicial power. 

The third characteristic of the judicial power is 
its inability to act unless it is appealed to, or until 
it has taken cognizance of an aflair. This charac- 
teristic is less general than the other two ; but not- 
withstanding the exceptions, I think it may be re- 
garded as essential. The judicial power is by its 
nature devoid of action ; it must be put in motion 
in order to produce a result. When it is called 
upon to repress a crime, it punishes the criminal ; 
when a wTong is to be redressed, it is ready to re- 
dress it ; when an act requires interpretation, it is 
prepared to interpret it ; but it does not pursue 



138 

criminals, hunt out wrongs, or examine into evi- 
dence of its own accord. A judicial functionary 
who should open proceedings, and usurp the cen- 
sureship of the laws, would in some measure do 
violence to the passive nature of his authority. 

The Americans have retained these three distin- 
guishing characteristics of the judicial power ; an 
American judge can only pronounce a decision 
when litigation has arisen, he is only conversant 
with special cases, and he cannot act until the 
cause has been duly brought before the court. His 
position is therefore perfectly similar to that of the 
magistrate of other nations ; and he is nevertheless 
invested with immense political power. If the 
sphere of his authority and his means of action are 
the same as those of other judges, it may be asked 
whence he derives a power which they do not pos- 
sess. The cause of this difference Ues in the sim- 
ple fact that/ the Americans have acknowledged the 
right of the judges to found their decisions on the 
constitution, rather than on the laws. In other 
words, they have left them at liberty not to apply 
such laws as may appear to them to be unconstitu- 
tional. 

I am aware that a similar right has been claimed 
— ^but claimed in vain — by courts of justice in other 
countries ; but in America it is recognised by all 
the authorities ; and not a party, nor so much as an 
individual, is found to contest it. \ This fact can 
only be explained by the principles of the American 



139 

constitutions. In France the constitution is (or 
at least is supposed to be) immutable ; and the re- 
ceived theory is that no power has the right of 
changing any part of it. In England, the Parlia- 
ment has an acknowledged right to modify the con- 
stitution ; as, therefore, the constitution may under- 
go perpetual changes, it does not in reality exist ; 
the Parliament is at once a legislative and a con- 
stituent assembly. The political theories of Ame- 
rica are more simple and more rational. An Ame- 
rican constitution is not supposed to be immutable 
as in France ; nor is it susceptible of modification 
by the ordinary powers of society as in England. 
It constitutes a detached whole, which, as it repre- 
sents the determination of the whole people, is no 
less binding on the legislator than on the private 
citizen, but which may be altered by the will of the 
people in predetermined cases, according to esta- 
blished rules. In America the constitution may 
therefore vary, but as long as it exists, it is the 
origin of all authority, and the sole vehicle of the 
predominating force. 

It is easy to perceive in what manner these dif- 
ferences must act upon the position and the rights 
of the judicial bodies in the three countries I have 
cited. If in France the tribunals were authorized 
to disobey the laws on the ground of their being 
opposed to the constitution, the supreme power 
would in fact be placed in their hands, since they 



140 

alone would have the right of interpreting a con- 
stitution, the clauses of which can be modified by 
no authority. They would therefore take the place 
of the nation, and exercise as absolute a sway over 
society as the inherent weakness of judicial power 
would allow them to do. Undoubtedly, as the 
French judges are incompetent to declare a law to 
be unconstitutional, the power of changing the 
constitution is indirectly given to the legislative 
body, since no legal barrier would oppose the al- 
terations which it might prescribe. But it is better 
to grant the power of changing the constitution of 
the people to men who represent (however imper- 
fectly) the will of the people, than to men who re- 
present no one but themselves. 

It would be still more unreasonable to invest the 
English judges with the right of resisting the de- 
cisions of the legislative body, since the Parliament 
which makes the laws also makes the constitution ; 
and consequently a law emanating from the three 
powers of the State can in no case be unconstitu- 
tional. But neither of these remarks is applicable 
to America. 

In the United States the constitution governs 
the legislator as much as the private citizen : as it 
is the first of laws, it cannot be modified by a law ; 
and it is therefore just that the tribunals should 
obey the constitution in preference to any law. 
This condition is essential to the power of the judi- 



141 

cature, for to select that legal obligation by which 
he is most strictly bound, is the natural right of 
every magistrate. 

In France the constitution is also the first of 
laws, and the judges have the same right to take it 
as the ground of their decisions ; but were they to 
exercise this right, they must perforce encroach on 
rights more sacred than their own, namely, on those 
of society, in whose name they are acting. In this 
case the State-motive clearly prevails over the mo- 
tives of an individual. In America, where the na- 
tion can always reduce its magistrates to obedience 
by changing its constitution, no danger of this 
kind is to be feared. Upon this point therefore the 
political and the logical reason agree, and the people 
as well as the judges preserve their privileges. 

Whenever a law which the judge holds to be un- 
constitutional is argued in a tribunal of the United 
States, he may refuse to admit it as a rule ; this 
power is the only one which is peculiar to the Ame- 
rican magistrate, but it gives rise to immense po- 
litical influence. Few laws can escape the search- 
ing analysis of the judicial power for any length of 
time, for there are few which are not prejudicial to 
some private interest or other, and none which may 
not be brought before a court of justice by the 
choice of parties, or by the necessity of the case. 
But from the time that a judge has refused to ap- 
ply any given law in a case, that law loses a por- 
tion of its moral cogency. The persons to whose 



142 

interests it is prejudicial, learn that means exist of 
evading its authority ; and similar suits are mul- 
tiplied, until it becomes powerless. One of two al- 
ternatives must then be resorted to : the people 
must alter the constitution, or the legislature must 
repeal the law. The political power which the Ame- 
ricans have intrusted to their courts of justice is 
therefore immense ; but the evils of this power are 
considerably diminished, by the obligation which has 
been imposed of attacking the laws through the 
courts of justice alone. If the judge had been em- 
powered to contest the laws on the ground of theo- 
retical generalities \ if he had been enabled to open 
an attack or to pass a censure on the legislator, he 
would have played a prominent part in the poHti- 
cal sphere ; and as the champion or the antagonist 
of a party, he would have arrayed the hostile pas- 
sions of the nation in the conflict. But when a 
judge contests a law, applied to some particular 
case in an obscure proceeding, the importance of 
his attack is concealed from the public gaze ; his 
decision bears upon the interest of an individual, 
and if the law is slighted, it is only collaterally. 
Moreover, although it be censured, it is not abo- 
lished ; its moral force may be diminished, but its 
cogency is by no means suspended ; and its final 
destruction can only be accomplished by the reiter- 
ated attacks of judicial functionaries. It will readily 
be understood that by connecting the censureship 
of the laws with the private interests of members of 



143 

the community, and by intimately uniting the pro- 
secution of the law with the prosecution of an in- 
dividual, the legislation is protected from wanton 
assailants, and from the daily aggressions of party- 
spirit. The errors of the legislator are exposed when- 
ever their evil consequences are most felt; and it is 
always a positive and appreciable fact which serves 
as the basis of a prosecution. 

I am inclined to believe this practice of the Ame- 
rican courts to be at once the most favourable to 
liberty as well as to public order. If the judge could 
only attack the legislator openly and directly, he 
would sometimes be afraid to oppose any resistance 
to his will ; and at other moments party-spirit might 
encourage him to brave it at every turn. The laws 
would consequently be attacked when the power 
from which they emanate is weak, and obeyed when 
it is strong. That is to say, when it would be 
useful to respect them, they would be contested ; 
and when it would be easy to convert them into an 
instrument of oppression, they would be respected. 
But the American judge is brought into the political 
arena independently of his own w41l. He only judges 
the law because he is obhged to judge a case. The 
political question which he is called upon to resolve 
is connected with the interest of the parties, and he 
cannot refuse to decide it without abdicating the 
duties of his post. He performs his functions as a 
citizen by fulfilling the precise duties which belong 
to his profession as a magistrate. It is true that 



144 

upon this system the judicial censureship which is 
exercised by the courts of justice over the legisla- 
tion cannot extend to all laws indistinctly, in as 
much as some of them can never give rise to that 
exact species of contestation which is termed a law- 
suit; and even when such a contestation is possible, 
it may happen that no one cares to bring it before 
a court of justice. The Americans have often felt 
this disadvantage, but they have left the remedy in- 
complete, lest they should give it an efficacy which 
might in some cases prove dangerous. | Within these 
limits, the power vested in the American courts of 
justice of pronouncing a statute to be unconstitu- 
tional, forms one of the most powerful barriers 
which has ever been devised against the tyranny of 
political assemblies. 






OTHER POWERS GRANTED TO THE AMERICAN JUDGES. 

In the United States all the citizens have the right of indicting 
the public functionaries before the ordinary tribunals. — How 
they use this right. — Art. 75. of the French Constitution of the 
An VIII. — The Americans and the English cannot understand 
the purport of this clause. 

It is perfectly natural that in a free country like 
America all the citizens should have the right of 
indicting public functionaries before the ordinary 
tribunals, and that all the judges should have the 
power of punishing public offences. The right 
granted to the courts of justice of judging the 



145 

agents of the executive government, when they have 
violated the laws, is so natural a one that it can- 
not be looked upon as an extraordinary privilege. 
Nor do the springs of government appear to me to 
be weakened in the United States by the custom 
which renders all public officers responsible to the 
judges of the land. The Americans seem, on the 
contrary, to have increased by this means that re- 
spect which is due to the authorities, and at the 
same time to have rendered those who are in power 
more scrupulous of offending public opinion. I was 
struck by the small number of political trials which 
occur in the United States ; but I had no difficulty 
in accounting for this circumstance. A lawsuit, of 
whatever nature it may be, is always a difficult and 
expensive undertaking. It is easy to attack a public 
man in a journal, but the motives which can war- 
rant an action at law must be serious. A solid 
ground of complaint must therefore exist, to induce 
an individual to prosecute a public officer, and pub- 
lic officers are careful not to furnish these grounds of 
complaint, when they are afraid of being prosecuted. 
This does not depend upon the republican form 
of the American institutions, for the same facts 
present themselves in England. These two nations 
do not regard the impeachment of the principal offi- 
cers of State as a sufficient guarantee of their inde- 
pendence. But they hold that the right of minor 
prosecutions, which are within the reach of the 
whole community, is a better pledge of freedom 

VOL. I. L 



146 

than those great judicial actions which are rarely 
employed until it is too late. 

In the Middle Ages, when it was very difficult to 
overtake offenders, the judges inflicted the most 
dreadful tortures on the few who were arrested, 
which by no means diminished the number of crimes. 
It has since been discovered that when justice is more 
certain and more mild, it is at the same time more 
efficacious. The English and the Americans hold 
that tyranny and oppression are to be treated like 
any other crime, by lessening the penalty and faci- 
litating conviction. 

In the year VIII. of the French Republic, a 
constitution was drawn up in which the following 
clause was introduced: ''Art. 75. All the agents 
of the Government below the rank of ministers can 
only be prosecuted for offences relating to their se- 
veral functions by virtue of a decree of the Conseil 
d'Etat; in which case the prosecution takes place 
before the ordinary tribunals." This clause survived 
the ''Constitution de l'An VIIL," and it is still 
maintained in spite of the just complaints of the na- 
tion. I have always found the utmost difficulty in 
explaining its meaning to Englishmen or Americans. 
They were at once led to conclude that the Conseil 
d'Etat in France was a great tribunal, established 
in the centre of the kingdom, which exercised a 
preliminary and somewhat tyrannical jurisdiction in 
all political causes. But when I told them that the 
Conseil d'Etat was not a judicial body, in the com- 



147 

mon sense of the term, but an administrative coun- 
cil composed of men dependent on the Crown, — so 
that the King, after having ordered one of his ser- 
vants, called a Prefect, to commit an injustice, has 
the power of commanding another of his servants, 
called a Councillor of State, to prevent the former 
from being punished, — when I demonstrated to them 
that the citizen who has been injured by the order 
of the sovereign is obliged to solicit from the sove- 
reign permission to obtain redress, they refused to 
credit so flagrant an abuse, and were tempted to 
accuse me of falsehood or of ignorance. It fre- 
quently happened before the Revolution that a Par- 
liament issued a warrant against a public officer who 
had committed an offence ; and sometimes the pro- 
ceedings were stopped by the authority of the Crown, 
which enforced compliance with its absolute and 
despotic will. It is painful to perceive how much 
lower we are sunk than our forefathers ; since we 
allow things to pass under the colour of justice and 
the sanction of the law, which violence alone could 
impose upon them. 



l2 



148 



CHAPTER VII. 

POLITICAL JURISDICTION IN THE UNITED STATES. 

Definition of political jurisdiction. — What is understood by poli- 
tical jurisdiction in France, in England, and in the United 
States. — In America the political judge can only pass sentence 
on public officers. — He more frequently passes a sentence of 
removal from office than a penalty. — Political jurisdiction as it 
exists in the United States is, notwithstanding its mildness, 
and perhaps in consequence of that mildness, a most powerful 
instrument in the hands of the majority. 

I UNDERSTAND, by political jurisdiction, that 
temporary right of pronouncing a legal decision 
with which a political body may be invested. 

In absolute governments no utility can accrue 
from the introduction of extraordinary forms of pro- 
cedure ; the prince, in whose name an offender is 
prosecuted, is as much the sovereign of the courts 
of justice as of everything else, and the idea which 
is entertained of his power is of itself a sufficient 
security. The only thing he has to fear is, that the 
external formalities of justice should be neglecteu, 
and that his authority should be dishonoured, from 
a wish to render it more absolute. But in most 
free countries, in which the majority can never ex- 
ercise the same influence upon the tribunals as an 
absolute monarch, the judicial power has occasion- 
ally been vested for a time in the representatives of 



149 

society. It has been thought better to introduce a 
temporary confusion between the functions of the 
different authorities, than to violate the necessary 
principle of the unity of government. 

England, France, and the United States have 
established this political jurisdiction by law ; and 
it is curious to examine the different adaptations 
which these three great nations have made of the 
principle. In England and in France the House of 
Lords and the Chambre des Pairs constitute the 
highest criminal court of their respective nations ; 
and although they do not habitually try all political 
offences, they are competent to try them all. An- 
other political body enjoys the right of impeach- 
ment before the House of Lords : the only difference 
which exists between the two countries in this re- 
spect is, that in England the Commons may impeach 
whomsoever they please before the Lords, whilst in 
France the Deputies can only employ this mode of 
prosecution against the ministers of the Crown. 

In both countries the Upper House may make 
use of all the existing penal laws of the nation to 
punish the delinquents. 

In the United States, as well as in Europe, one 
branch of the legislature is authorized to impeach, 
and another to judge : the House of Representatives 
arraigns the offender, and the Senate awards his 
sentence. But the Senate can only try such per- 
sons as are brought before it by the House of Re- 
presentatives, and those persons must belong to the 



150 

class of public functionaries. Thus the jurisdiction 
of the Senate is less extensive than that of the Peers 
of France, whilst the right of impeachment by the 
Representatives is more general than that of the 
Deputies. But the great difference which exists 
between Europe and America is, that in Europe 
political tribunals are empowered to inflict all the 
dispositions of the penal code, whilst in America, 
when they have deprived the offender of his official 
rank, and have declared him incapable of filling any 
political office for the future, their jurisdiction ter- 
minates and that of the ordinary tribunals begins. 

Suppose, for instance, that the President of the 
United States has committed the crime of high 
treason ; the House of Representatives impeaches 
him, and the Senate degrades him ; he must then 
be tried by a jury, which alone can deprive him of 
his liberty or his life. This accurately illustrates 
the subject we are treating. The political ju- 
risdiction which is established by the laws of Eu- 
rope is intended to try great offenders, whatever 
may be their birth, their rank, or their powers in 
the State ; and to this end all the privileges of the 
courts of justice are temporarily extended to a great 
political assembly. The legislator is then trans- 
formed into the magistrate ; he is called upon to 
admit, to distinguish, and to punish the offence ; 
and as he exercises all the authority of a judge, 
the law restricts him to the observance of all the du- 
ties of that high office, and of all the formahties of 



151 

justice. When a public functionary is impeached 
before an English or a French political tribunal, 
and is found guilty, the sentence deprives him ipso 
facto of his functions, and it may pronounce him 
to be incapable of resuming them or any others for 
the future. But in this case the political interdict 
is a consequence of the sentence, and not the sen- 
tence itself. In Europe the sentence of a political 
tribunal is to be regarded as a judicial verdict, ra- 
ther than as an administrative measure. In the 
United States the contrary takes place; and al- 
though the decision of the Senate is judicial in its 
form, since the Senators are obliged to comply with 
the practices and formalities of a court of justice ; 
although it is judicial in respect to the motives on 
which it is founded, since the Senate is in general 
obliged to take an offence at common law as the 
basis of its sentence ; nevertheless the object of the 
proceeding is purely administrative. If it had been 
the intention of the American legislator to invest 
a poUtical body with great judicial authority, its 
action would not have been limited to the circle of 
public functionaries, since the most dangerous ene- 
mies of the State may be in the possession of no 
functions at all ; and this is especially true in re- 
publics, where party influence is the first of autho- 
rities, and where the strength of many a leader is 
increased by his exercising no legal power. 

If it had been the intention of the American 
legislator to give society the means of repressing 



State offences by exemplary punishment, according 
to the practice of ordinary justice, the resources of 
the penal code would all have been placed at the 
disposal of the political tribunals. But the weapon 
with which they are entrusted is an imperfect one, 
and it can never reach the most dangerous offenders ; 
since men who aim at the entire subversion of the 
laws are not likely to murmur at a political interdict. 
The main object of the political jurisdiction which 
obtains in the United States is, therefore, to deprive 
the ill-disposed citizen of an authority which he has 
used amiss, and to prevent him from ever acquir- 
ing it again. This is evidently an administrative 
measure sanctioned by the formalities of a judicial 
decision. In this matter the Americans have cre- 
ated a mixed system ; they have surrounded the act 
which removes a public functionary with the secu- 
rities of a political trial ; and they have deprived 
all political condemnations of their severest penal- 
ties. Every link of the system may easily be traced 
from this point ; we at once perceive why the 
American constitutions subject all the civil func- 
tionaries to the jurisdiction of the Senate, whilst 
the military, whose crimes are nevertheless more 
formidable, are exempted from that tribunal. In 
the civil service none of the American functiona- 
ries can be said to be removeable ; the places which 
some of them occupy are inalienable, and the others 
are chosen for a term which cannot be shortened. 
It is therefore necessary to try them all in order to 



153 

deprive them of their authority. But military offi- 
cers are dependent on the chief magistrate of the 
State, who is himself a civil functionary; and the de- 
cision which condemns him is a blow upon them all. 
If we now compare the American and the Euro- 
pean systems, we shall meet with differences no 
less striking in the different effects which each of 
them produces or may produce. In France and 
in England the jurisdiction of political bodies is 
looked upon as an extraordinary resource, which is 
only to be employed in order to rescue society from 
unwonted dangers. It is not to be denied that these 
tribunals, as they are constituted in Europe, are apt 
to violate the conservative principle of the balance 
of power in the State, and to threaten incessantly 
the lives and liberties of the subject. The same 
political jurisdiction in the United States is only 
indirectly hostile to the balance of power ; it can- 
not menace the lives of the citizens, and it does not 
hover, as in Europe, over the heads of the com- 
munity, since those only who have submitted to its 
authority upon accepting office are exposed to the 
severity of its investigations. It is at the same 
time less formidable and less efficacious ; indeed, it 
has not been considered by the legislators of the 
United States as a remedy for the more violent 
evils of society, but as an ordinary means of con- 
ducting the government. In this respect it pro- 
bably exercises more real influence on the social 
body in America than in Europe. We must not be 
misled by the apparent mildness of the American 



154 

legislation in all that relates to political jurisdiction. 
It is to be observed, in the first place, that in the 
United States the tribunal which passes sentence 
is composed of the same elements, and subject to 
the same influences, as the body which impeaches 
the offender, and that this uniformity gives an al- 
most irresistible impulse to the vindictive passions 
of parties. If political judges in the United States 
cannot inflict such heavy penalties as those of Eu- 
rope, there is the less chance of their acquitting a 
prisoner ; and the conviction, if it is less formida- 
ble, is more certain. The principal object of the 
political tribunals of Europe is to punish the of- 
fender ; the purpose of those in America is to 
deprive him of his authority. A political con- 
demnation in the United States may, therefore, be 
looked upon as a preventive measure ; and there is 
no reason for restricting the judges to the exact 
definitions of criminal law. Nothing can be more 
alarming than the excessive latitude with which 
political oflences are described in the laws of Ame- 
rica. Article II. Section iv. of the Constitution of 
the United States runs thus: '* The President, 
Vice-President, and all civil officers of the United 
States shall be removed from office on impeachment 
for, and conviction of, treason, bribery, or other high 
crimes and misdemeanors.'^ Many of the Constitu- 
tions of the States are even less explicit. *' Pubhc 
officers," says the Constitution of Massachusetts*, 
** shall be impeached for misconduct or malad- 

' Chapter I. sect. li. §. 8. 



155 

ministration ; the Constitution of Virginia declares 
that all the civil officers who shall have offended 
against the State by maladministration, corruption, 
or other high crimes, may be impeached by the House 
of Delegates: in some constitutions no offences are 
specified, in order to subject the public functionaries 
to an unlimited responsibility \ But I will venture 
to affirm, that it is precisely their mildness which 
renders the American laws most formidable in this 
respect. We have shown that in Europe the re- 
moval of a functionary and his political interdiction 
are the consequences of the penalty he is to under- 
go, and that in America they constitute the penalty 
itself. The consequence is that in Europe political 
tribunals are invested with rights which they are 
afraid to use, and that the fear of punishing too 
much hinders them from punishing at all. But in 
America no one hesitates to inflict a penalty from 
which humanity does not recoil. To condemn a po- 
litical opponent to death, in order to deprive him 
of his power, is to commit what all the world would 
execrate as a horrible assassination ; but to declare 
that opponent unworthy to exercise that autho- 
rity, to deprive him of it, and to leave him unin- 
jured in life and limb, may be judged to be the fair 
issue of the struggle. But this sentence, which it 
is so easy to pronounce, is not the less fatally se- 
vere to the majority of those upon whom it is in- 

1 See the Constitutions of Illinois, Maine, Connecticut, and 
Georgia. 



156 

flicted. Great criminals may undoubtedly brave 
its intangible rigour, but ordinary offenders will 
dread it as a condemnation which destroys their 
position in the world, casts a blight upon their 
honour, and condemns them to a shameful inac- 
tivity worse than death. The influence exercised 
in the United States upon the progress of society 
by the jurisdiction of political bodies may not ap- 
pear to be formidable, but it is only the more im- 
mense. It does not directly coerce the subject, but 
it renders the majority more absolute over those in 
power ; it does not confer an unbounded authority 
on the legislator which can only be exerted at some 
momentous crisis, but it establishes a temperate 
and regular influence, which is at all times avail- 
able. If the power is decreased, it can, on the other 
hand, be more conveniently employed, and more 
easily abused. By preventing political tribunals 
from inflicting judicial punishments, the Americans 
seem to have eluded the worst consequences of le- 
gislative tyranny, rather than tyranny itself; and I 
am not sure that political jurisdiction, as it is con- 
stituted in the United States, is not the most for- 
midable weapon which has ever been placed in the 
rude grasp of a popular majority. When the Ame- 
rican republics begin to degenerate, it will be easy 
to verify the truth of this observation, by remarking 
whether the number of political impeachments 
augments \ 

' See Appendix, N. 



157 



CHAPTER VIII. 

THE FEDERAL CONSTITUTION. 

I HAVE hitherto considered each State as a sepa- 
rate whole, and I have explained the different springs 
which the people sets in motion, and the different 
means of action which it employs. But all the 
States which I have considered as independent are 
forced to submit, in certain cases, to the supreme 
authority of the Union. The time is now come for 
me to examine separately the supremacy with which 
the Union has been invested, and to cast a rapid 
glance over the Federal Constitution \ 



HISTORY OF THE FEDERAL CONSTITUTION. 

Origin of the first Union. — Its weakness. — Congress appeals to 
the constituent authority. — Interval of two years between this 
appeal and the promulgation of the new Constitution. 

The thirteen colonies which simultaneously threw 
off the yoke of England towards the end of the last 
century, professed, as I have already observed, the 
same religion, the same language, the same customs, 
and almost the same laws ; they were struggling 
against a common enemy ; and these reasons were 

* See the Constitution of the United States in the Appendix. 



158 

sufficiently strong to unite them one to another, and 
to consolidate them into one nation. But as each 
of them had enjoyed a separate existence, and a 
government within its own control, the peculiar 
interests and customs which resulted from this 
system were opposed to a compact and intimate 
union which would have absorbed the individual im- 
portance of each in the general importance of all. 
Hence arose two opposite tendencies, the one 
prompting the Anglo-Americans to unite, the other 
to divide their strength. As long as the war with 
the mother-country lasted, the principle of union 
was kept alive by necessity ; and although the laws 
which constituted it were defective, the common tie 
subsisted in spite of their imperfections'. But no 
sooner was peace concluded than the faults of the 
legislation became manifest, and the State seemed 
to be suddenly dissolved. Each colony became an 
independent republic, and assumed an absolute so- 
vereignty. The federal government, condemned to 
impotence by its constitution, and no longer sus- 
tained by the presence of a common danger, wit- 
nessed the outrages offered to its flag by the great 
nations of Europe, whilst it was scarcely able to 
maintain its ground against the Indian tribes, and 

^ See the articles of the first confederation formed in 1778. 
This constitution was not adopted by all the States until 1781. 
See also the analysis given of this constitution in the Federalist, 
from No. 15 to No. 22, inclusive, and Story's ' Commentaries on 
the Constitution of the United States,' pp. 85 — 115. 



159 

to pay the interest of the debt which had been con- 
tracted during the war of independence. It was 
already on the verge of destruction, when it officially 
proclaimed its inability to conduct the government, 
and appealed to the constituent authority of the 
nation \ If America ever approached (for however 
brief a time) that lofty pinnacle of glory to which 
the fancy of its inhabitants is wont to point, it was 
at the solemn moment at which the power of the 
nation abdicated, as it were, the empire of the land. 
All ages have furnished the spectacle of a people 
struggling with energy to win its independence ; 
and the efforts of the Americans in throwing off 
the English yoke have been considerably exagge- 
rated. Separated from their enemies by three 
thousand miles of ocean, and backed by a powerful 
ally, the success of the United States may be more 
justly attributed to their geographical position than 
to the valour of their armies or the patriotism of 
their citizens. It would be ridiculous to compare 
the American war to the wars of the French Revo- 
lution, or the efforts of the Americans to those of 
the French, when they were attacked by the whole 
of Europe, without credit and without allies, yet 
capable of opposing a twentieth part of their popu- 
lation to the world, and of bearing the torch of re- 
volution beyond their frontiers whilst they stifled 
its devouring flame within the bosom of their coun- 
try. But it is a novelty in the history of society 

* Congress made this declaration on the 21st of Feb. 1787. 



160 

to see a great people turn a calm and scrutinizing 
eye upon itself when apprized by the legislature 
that the wheels of government are stopped ; to see 
it carefully examine the extent of the evil, and pa- 
tiently wait for two whole years until a remedy was 
discovered, which it voluntarily adopted without 
having wrung a tear or a drop of blood from man- 
kind. At the time when the inadequacy of the first 
constitution was discovered, America possessed the 
double advantage of that calm which had succeeded 
the effervescence of the revolution, and of those 
great men who had led the revolution to a success- 
ful issue. The assembly which accepted the task 
of composing the second constitution was small * ; 
but George Washington was its President, and it 
contained the choicest talents and the noblest hearts 
which had ever appeared in the New World. This 
national commission, after long and mature delibe- 
ration, offered to the acceptance of the people the 
body of general laws which still rules the Union. 
All the States adopted it successively^. The new 
Federal Government commenced its functions in 
1789, after an interregnum of two years. The Re- 
volution of America terminated when that of France 
began. 

1 It consisted of fifty-five members ; Washington, Madison, 
Hamilton, and the two Morrises M^ere amongst the number. 

2 It was not adopted by the legislative bodies, but representa- 
tives were elected by the people for this sole purpose ; and the new 
constitution was discussed at length in each of these assemblies. 



161 



SUMMARY OF THE FEDERAL CONSTITUTION. 

Division of authority between the Federal Government and the 
States. — ^The Government of the States is the rule, — the 
Federal Government the exception. 

The first question which awaited the Americans 
was intricate, and by no means easy of solution : 
the object was so to divide the authority of the dif- 
ferent States which composed the Union, that each 
of them should continue to govern itself in all that 
concerned its internal prosperity, whilst the entire 
nation, represented by the Union, should continue 
to form a compact body, and to provide for the 
general exigencies of the people. It was as im- 
possible to determine beforehand, with any degree 
of accuracy, the share of authority which each of 
the two Governments was to enjoy, as to foresee all 
the incidents in the existence of a nation. 

The obligations and the claims of the Federal 
Government were simple and easily definable, be- 
cause the Union had been formed with the express 
purpose of meeting the general exigencies of the 
people ; but the claims and obligations of the States 
were, on the other hand, complicated and various, 
because those Governments penetrated into all the 
details of social life. The attributes of the Federal 
Government were therefore carefully enumerated, 
and all that was not included amongst them was 
declared to constitute a part of the privileges of the 

VOL. I. M 



162 

several Governments of the States. Thus the go- 
vernment of the States remained the rule, and that 
of the Confederation became the exception \ 

But as it was foreseen that, in practice, questions 
might arise as to the exact limits of this exceptional 
authority, and that it would be dangerous to sub- 
mit these questions to the decision of the ordinary 
courts of justice, established in the States by the 
States themselves, a high Federal court was cre- 
ated ^, which was destined, amongst other functions, 
to maintain the balance of power which had been 
established by the Constitution between the two ri- 
val Governments ^ 

' See the Amendment to the Federal Constitution ; Federalist, 
No. 32. Story, p. 711. Kent's Commentaries, vol. i. p. 364. 

It is to be observed, that whenever the exclusive right of regu- 
lating certain matters is not reserved to Congress by the Consti- 
tution, the States may take up the affair, until it is brought before 
the National Assembly. For instance, Congress has the right of 
making a general law on bankruptcy, which, however, it neglects 
to do. Each State is then at liberty to make a law for itself. 
This point, however, has been established by discussion in the law- 
courts, and may be said to belong more properly to jurisprudence. 

® The action of this court is indirect, as we shall hereafter show. 

3 It is thus that the Federalist, No. 45, explains the division 
of supremacy between the Union and the States. " The powers 
delegated by the Constitution to the Federal Government are few 
and defined. Those which are to remain in the State Govern- 
ments are numerous and indefinite. The former will be exercised 
principally on external objects, as war, peace, negotiation, and 
foreign commerce. The powers reserved to the several States 
will extend to all the objects which, in the ordinary course of 
affairs, concern the internal order and prosperity of the State." 

I shall often have occasion to quote the Federalist in this 



163 



PREROGATIVE OF THE FEDERAL GOVERNMENT. 

Power of declaring war, making peace, and levying general taxes 
vested in the Federal Government. — What part of the internal 
policy of the country it may direct. — The Government of the 
Union in some respects more central than the King's Govern- 
ment in the old French monarchy. 

The external relations of a people may be compared 
to those of private individuals, and they cannot be 
advantageously maintained without the agency of 
the single head of a Government. The exclusive 
right of making peace and war, of concluding trea- 
ties of commerce, of raising armies, and equipping 
fleets, was granted to the Union '. The necessity 
of a national Government was less imperiously felt 
in the conduct of the internal policy of society ; but 
there are certain general interests which can only 
be attended to with advantage by a general autho- 

work. When the bill, which has since become the Constitution of 
the United States, was submitted to the approval of the people, 
and the discussions were still pending, three men, who had already 
acquired a portion of that celebrity which they have since enjoyed, 
John Jay, Hamilton, and Madison, formed an association with 
the intention of explaining to the nation the advantages of the 
measure which was proposed. With this view they published a 
series of articles in the shape of a journal, which now form a 
complete treatise. They entitled their journal * The Federalist,' 
a name which has been retained in the work. The Federalist is 
an excellent book, which ought to be familiar to the statesmen of 
aU countries, although it especially concerns America. 

^ See Constitution, sect. 8. Federalist, Nos. 41 and 42. Kent's 
Commentaries, vol. i. p. 207. Story, pp. 358-382 ; ibid. pp. 
409-426. 

M 2 



164 

rity. The Union was invested with the power of 
controling the monetary system, of directing the 
post-office, and of opening the great roads which 
were to establish a communication between the dif- 
ferent parts of the country \ The independence of 
the Government of each State was formally recog- 
nised in its sphere ; nevertheless, the Federal Go- 
vernment was authorized to interfere in the internal 
affairs of the States^ in a few predetermined cases, 
in which an indiscreet abuse of their independence 
might compromise the security of the Union at 
large. Thus, whilst the power of modifying and 
changing their legislation at pleasure was preserved 
in all the republics, they were forbidden to enact 
ex-post'facto laws, or to create a class of nobles in 
their community ^ Lastly, as it was necessary that 
the Federal Government should be able to fulfill its 
engagements, it was endowed with an unlimited 
power of levying taxes 4. 

Tn examining the balance of power as established 
by the Federal Constitution ; in remarking on the 
one hand the portion of sovereignty which has been 

* Several other privileges of the same kind exist, such as that 
which empowers the Union to legislate on bankruptcy, to grant 
patents, and other matters in which its intervention is clearly 
necessary. 

^ Even in these cases its interference is indirect. The Union 
interferes by means of the tribunals, as vnll be hereafter shown. 

' Federal Constitution, sect. 10. art. 1. 

-* Constitution, sect. 8, 9, and 10. Federalist, Nos. 30-36 in- 
clusive, and 41-44. Kent's Commentaries, vol. i. pp. 207 and 
381. Story, pp. 329 and 514. 



165 

reserved to the several States, and on the other the 
share of power which the Union has assumed, it is 
evident that the Federal legislators entertained the 
clearest and most accurate notions on the nature of 
the centralization of government. The United States 
form not only a republic, but a confederation ; ne- 
vertheless the authority of the nation is more cen- 
tral than it was in several of the monarchies of 
Europe when the American Constitution was formed. 
Take, for instance, the two following examples. 

Thirteen supreme courts of justice existed in 
France, which, generally speaking, had the right of 
interpreting the law without appeal ; and those 
provinces which were styled pays d'Etats, were au- 
thorized to refuse their assent to an impost which 
had been levied by the sovereign who represented 
the nation. 

In the Union there is but one tribunal to inter- 
pret, as there is one legislature to make the laws ; 
and an impost voted by the representatives of the 
nation is binding upon all the citizens. In these 
two essential points, therefore, the Union exercises 
more central authority than the French monarchy 
possessed, although the Union is only an assem- 
blage of confederate republics. 

In Spain certain provinces had the right of esta- 
blishing a system of custom-house duties peculiar 
to themselves, although that privilege belongs, by 
its very nature, to the national sovereignty. In 
America the Congress alone has the right of regu- 



166 

lating the commercial relations of the States. The 
government of the Confederation is therefore more 
centralized in this respect than the kingdom of 
Spain. It is true that the power of the Crown in 
France or in Spain was always able to obtain by 
force whatever the Constitution of the country de- 
nied, and that the ultimate result was consequently 
the same ; but I am here discussing the theory of 
the Constitution. 



FEDERAL POWERS. 



After having settled the limits within which the 
Federal Government was to act, the next point was 
to determine the powers which it was to exert. 



LEGISLATIVE POWERS. 



Division of the Legislative Body into two branches. — Difference 
in the manner of forming the two Houses. — The principle of the 
independence of the States predominates in the formation of 
the Senate. — The principle of the sovereignty of the nation in 
the composition of the House of Representatives. — Singular 
effects of the fact that a Constitution can only be logical in the 
early stages of a nation. 

The plan which had been laid down beforehand for 
the Constitutions of the several States was followed, 
in many points, in the organization of the powers of 
the Union. The Federal legislature of the Union was 



167 

composed of a Senate and a House of Representa- 
tives. A spirit of conciliation prescribed the ob- 
servance of distinct principles in the formation of 
these two assembhes. I have already shown that 
two contrary interests were opposed to each other 
in the establishment of the Federal Constitution. 
These two interests had given rise to two opinions. 
It was the wish of one party to convert the Union 
into a league of independent States, or a sort of 
congress, at which the representatives of the seve- 
ral peoples would meet to discuss certain points of 
their common interests. The other party desired 
to unite the inhabitants of the American colonies 
into one sole nation, and to establish a Government, 
which should act as the sole representative of the 
nation, as far as the limited sphere of its authority 
would permit. The practical consequences of these 
two theories were exceedingly different. 

The question was, whether a league was to be 
established instead of a national Government ; 
whether the majority of the States, instead of the 
majority of the inhabitants of the Union, was to give 
the law: for every State, the small as well as the 
great, would then remain in the full enjoyment of its 
independence, and enter the Union upon a footing 
of perfect equality. If, however, the inhabitants of 
the United States were to be considered as belong- 
ing to one and the same nation, it would be just that 
the majority of the citizens of the Union should 
prescribe the law. Of course the lesser States could 



168 

not subscribe to the application of this doctrine 
without, in fact, abdicating their existence in rela- 
tion to the sovereignty of the Confederation ; since 
they would have passed from the condition of a 
coequal and colegislative authority, to that of an 
insignificant fraction of a great people. But if the 
former system would have invested them with an 
excessive authority, the latter would have annulled 
their influence altogether. Under these circum- 
stances, the result was, that the strict rules of logic 
were evaded, as is usually the case when interests 
are opposed to arguments. A middle course was 
hit upon by the legislators, which brought together 
by force two systems theoretically irreconcileable. 

The principle of the independence of the States 
prevailed in the formation of the Senate, and that 
of the sovereignty of the nation predominated in 
the composition of the House of Representatives. 
It was decided that each State should send two 
senators to Congress, and a number of represen- 
tatives proportioned to its population \ It results 
from this arrangement that the State of New York 

• Every ten years Congress fixes anew the number of repre- 
sentatives which each State is to furnish. The total number was 
69 in 1789, and 240 in 1833. (See American Almanac, 1834, 
p. 194.) 

The Constitution decided that there should not be more than 
one representative for every 30,000 persons ; but no minimum was 
fixed on. The Congress has not thought fit to augment the num- 
ber of representatives in proportion to the increase of population. 
The first Act which was passed on the subject (14th of April, 



169 

has at the present day forty representatives, and 
only two senators ; the State of Delaware has two 
senators, and only one representative; the State of 
Delaware is therefore equal to the State of New 
York in the Senate, whilst the latter has forty times 
the influence of the former in the House of Repre- 
sentatives. Thus, if the minority of the nation pre- 
ponderates in the Senate, it may paralyse the de- 
cisions of the majority represented in the other 
House, which is contrary to the spirit of constitu- 
tional government. 

These facts show how rare and how difficult it is 
rationally and logically to combine all the several 
parts of legislation. In the course of time different 
interests arise, and different principles are sanc- 
tioned by the same people ; and when a general 
constitution is to be established, these interests 
and principles are so many natural obstacles to the 
rigorous application of any political system, with 
all its consequences. The early stages of national 
existence are the only periods at which it is possi- 
ble to maintain the complete logic of legislation ; 
and when we perceive a nation in the enjoyment of 
this advantage, before we hasten to conclude that 
it is wise, we should do well to remember that it is 

1792 : see Laws of the United States by Story, vol. i.p. 235,) 
decided that there should be one representative for every 33,000 
inhabitants. The last Act, which was passed in 1832, fixes the 
proportion at one for 48,000. The population represented is 
composed of all the free men, and of three fifths of the slaves. 



170 

young. When the Federal Constitution was formed, 
the interest of independence for the separate States, 
and the interest of union for the whole people, were 
the only two conflicting interests which existed 
amongst the Anglo-Americans ; and a compromise 
was necessarily made between them. 

It is, however, just to acknowledge that this part 
of the Constitution has not hitherto produced those 
evils which might have been feared. All the States 
are young and contiguous; their customs, their 
ideas, and their exigencies are not dissimilar ; and 
the differences which result from their size or infe- 
riority do not sufiice to set their interests at vari- 
ance. The small States have consequently never 
been induced to league themselves together in the 
Senate to oppose the designs of the larger ones ; and 
indeed there is so irresistible an authority in the 
legitimate expression of the will of a people, that 
the Senate could ofier but a feeble opposition to 
the vote of the majority of the House of Repre- 
sentatives. 

It must not be forgotten, on the other hand, that 
it was not in the power of the American legislators 
to reduce to a single nation the people for whom 
they were making laws. The object of the Federal 
Constitution was not to destroy the independence of 
the States, but to restrain it. By acknowledging 
the real authority of these secondary communities, 
(and it was impossible to deprive them of it,) they 
disavowed beforehand the habitual use of con- 



171 

straint in enforcing the decisions of the majority. 
Upon this principle the introduction of the influ- 
ence of the States into the mechanism of the Fe- 
deral Government was by no means to be won- 
dered at ; since it only attested the existence of an 
acknowledged power, which was to be humoured, 
and not forcibly checked. 



A FURTHER DIFFERENCE BETWEEN THE SENATE AND 
THE HOUSE OF REPRESENTATIVES. 

The Senate named by the provincial legislators, — the Representa- 
tives, by the people. — Double election of the former; — single 
election of the latter. — ^Term of the different offices. — Peculiar 
functions of each House. 

The Senate not only diflers from the other House 
in the principle which it represents, but also in 
the mode of its election, in the term for which it is 
chosen, and in the nature of its functions. The 
House of Representatives is named by the people, 
the Senate by the legislators of each State; the for- 
mer is directly elected, the latter is elected by an 
elected body ; the term for which the representa- 
tives are chosen is only two years, that of the 
senators is six. The functions of the House of Re- 
presentatives are purely legislative, and the only 
share it takes in the judicial power is in the im- 
peachment of public officers. The Senate cooperates 
in the work of legislation, and tries those political 



172 

offences which the House of Representatives sub- 
mits to its decision. It also acts as the great execu- 
tive council of the nation ; the treaties which are 
concluded by the President must be ratified by 
the Senate ; and the appointments he may make 
must be definitively approved by the same body^ 



THE EXECUTIVE POWER*. 



Dependence of the President. — He is elective and responsible. — 
He is free to act in liis own sphere under the inspection, but 
not under the direction, of the Senate. — His salary fixed at his 
entry into office. — Suspensive veto. 

The American legislators undertook a difficult task 
in attempting to create an executive power depend- 
ent on the majority of the people, and nevertheless 
sufiiciently strong to act without restraint in its 
own sphere. It was indispensable to the mainte- 
nance of the republican form of government that 
the representative of the executive power should be 
subject to the will of the nation. 

The President is an elective magistrate. His 
honour, his property, his liberty, and his life are 
the securities which the people has for the tempe- 
rate use of his power. But in the exercise of his 

' See The Federalist, Nos. 52 — 66, inclusive. Story, pp. 199 — 
314. Constitution of the United States, sections 2 and 3. 

* See The Federalist, Nos. 67—77. Constitution of the U. S., 
art. 2. Story, p. 315, pp. 515 — 780. Kent's Commentaries, p. 255. 



173 

authority he cannot be said to be perfectly indepen- 
dent ; the Senate takes cognizance of his relations 
with foreign powers, and of the distribution of pub- 
lic appointments, so that he can neither be bribed, 
nor can he employ the means of corruption. The 
legislators of the Union acknowledged that the exe- 
cutive power would be incompetent to fulfill its task 
with dignity and utility, unless it enjoyed a greater 
degree of stability and of strength than had been 
granted it in the separate States. 

The President is chosen for four years, and he 
may be re-elected ; so that the chances of a pro- 
longed administration may inspire him with hope- 
ful undertakings for the public good, and with the 
means of carrying them into execution. The Pre- 
sident was made the sole representative of the exe- 
cutive power of the Union ; and care was taken not 
to render his decisions subordinate to the vote of a 
council, — a dangerous measure, which tends at the 
same time to clog the action of the Government 
and to diminish its responsibility. The Senate has 
the right of annulling certain acts of the President ; 
but it cannot compel him to take any steps, nor 
does it participate in the exercise of the executive 
power. 

The action of the legislature on the executive 
power may be direct ; and we have just shown that 
the Americans carefully obviated this influence : 
but it may, on the other hand, be indirect. Public 
assemblies which have the power of depriving an 



174 

officer of state of his salary, encroach upon his in- 
dependence ; and as they are free to make the laws, 
it is to be feared lest they should gradually appro- 
priate to themselves a portion of that authority 
which the Constitution had vested in his hands. 
This dependence of the executive power is one of 
the defects inherent in republican constitutions. 
The Americans have not been able to counteract 
the tendency which legislative assemblies have to 
get possession of the government, but they have 
rendered this propensity less irresistible. The salary 
of the President is fixed, at the time of his entering 
upon office, for the whole period of his magistracy. 
The President is moreover provided with a suspen- 
sive veto, which allows him to oppose the passing 
of such laws as might destroy the portion of inde- 
pendence which the Constitution awards him. The 
struggle between the President and the legislature 
must always be an unequal one, since the latter is 
certain of bearing down all resistance by persevering 
in its plans ; but the suspensive veto forces it at 
least to reconsider the matter, and, if the motion be 
persisted in, it must then be backed by a majority 
of two thirds of the whole house. The veto is, in 
fact, a sort of appeal to the people. The executive 
power, which, without this security, might have 
been secretly oppressed, adopts this means of plead- 
ing its cause and stating its motives. But if the 
legislature is certain of overpowering all resistance 
by persevering in its plans, I reply, that in the con- 



175 

stitutions of all nations, of whatever kind they may 
be, a certain point exists at which the legislator is 
obliged to have recourse to the good sense and the 
virtue of his fellow-citizens. This point is more pro- 
minent and more discoverable in republics, whilst 
it is more remote and more carefully concealed in 
monarchies, but it always exists somewhere. There 
is no country in the world in which everything 
can be provided for by the laws, or in which politi- 
cal institutions can prove a substitute for common 
sense and public morality. 



DIFFERENCES BETWEEN THE POSITION OF THE PRESI- 
DENT OF THE UNITED STATES AND THAT OF A CON- 
STITUTIONAL KING OF FRANCE. 

Executive power in the Northern States as limited and as partial 
as the supremacy which it represents. — Executive power in 
France as universal as the supremacy it represents. — The King 
a branch of the legislature. — ^The President the mere execu- 
tor of the law. — Other différences resulting from the duration 
of the two powers. — The President checked in the exercise of 
the executive authority. — The King independent in its exer- 
cise. — ^Notwithstanding these discrepancies France is more akin 
to a republic than the Union to a monarchy. — Comparison of 
the number of public officers depending upon the executive 
power in the two countries. 

The executive power has so important an influence 
on the destinies of nations, that I am inclined to 
pause for an instant at this portion of my subject, 



176 

in order more clearly to explain the part it sustains 
in America. In order' to form an accurate idea of 
the position of the President of the United States, 
it may not be irrelevant to compare it to that of one 
of the constitutional kings of Europe. In this com- 
parison I shall pay but little attention to the ex- 
ternal signs of power, which are more apt to deceive 
the eye of the observer than to guide his researches. 
When a monarchy is being gradually transformed 
into a republic, the executive power retains the titles, 
the honours, the etiquette, and even the funds of 
royalty long after its authority has disappeared. 
The English, after having cut off the head of one 
king, and expelled another from his throne, were 
accustomed to accost the successor of those princes 
upon their knees. On the other hand, when a re- 
public falls under the sway of a single individual, 
the demeanour of the sovereign is simple and un- 
pretending, as if his authority was not yet para- 
mount. When the emperors exercised an unlimited 
control over the fortunes and the lives of their 
fellow-citizens, it was customary to call them Caesar 
in conversation, and they were in the habit of sup- 
ping without formality at their friends' houses. It 
is therefore necessary to look below the surface. 

The sovereignty of the United States is shared 
between the Union and the States, whilst in France 
it is undivided and compact : hence arises the first 
and the most notable difference which exists be- 
tween the President of the United States and the 



177 

King of France. In the United States the executive 
power is as limited and partial as the sovereignty of 
the Union in whose name it acts ; in France it is as 
universal as the authority of the State. The Ame- 
ricans have a federal, and the French a national Go- 
vernment. 

This cause of inferiority results from the nature 
of things, but it is not the only one ; the second 
in importance is as follows : Sovereignty may be 
defined to be the right of making laws : in France, 
the King really exercises a portion of the sovereign 
power, since the laws have no weight till he has 
given his assent to them ; he is moreover the exe- 
cutor of all they ordain. The President is also the 
executor of the laws, but he does not really coope- 
rate in their formation, since the refusal of his as- 
sent does not annul them. He is therefore merely 
to be considered as the agent of the sovereign power. 
But not only does the King of France exercise a por- 
tion of the sovereign power, he also contributes to 
the nomination of the legislature, which exercises 
the other portion. He has the privilege of appoint- 
ing the members of one chamber, and of dissolving 
the other at his pleasure ; whereas the President of 
the United States has no share in the formation of 
the legislative body, and cannot dissolve any part 
of it. The King has the same right of bringing for- 
ward measures as the Chambers ; a right which the 
President does not possess. The King is represented 
in each assembly by his ministers, who explain his 

VOL. I. N 



178 

intentions, support his opinions, and maintain the 
principles of the Government. The President and 
his ministers are alike excluded from Congress ; so 
that his influence and his opinions can only penetrate 
indirectly into that great body. The King of France 
is therefore on an equal footing with the legislature, 
which can no more act without him, than he can 
without it. The President exercises an authority in- 
ferior to, and depending upon, that of the legislature. 

Even in the exercise of the executive power, pro- 
perly so called, — the point upon which his position 
seems to be most analogous to that of the King of 
France, — the President labours under several causes 
of inferiority. The authority of the King, in France, 
has, in the first place, the advantage of duration over 
that of the President : and durability is one of the 
chief elements of strength ; nothing is either loved 
or feared but what is likely to endure. The Presi- 
dent of the United States is a magistrate elected for 
four years. The King, in France, is an hereditary 
sovereign. 

In the exercise of the executive power the Presi- 
dent of the United States is constantly subject to a 
jealous scrutiny. He may make, but he cannot con- 
clude, a treaty ; he may designate, but he cannot ap- 
point, a public officer \ The King of France is abso- 
lute within the limits of his authority. 

* The Constitution had left it doubtful whether the President 
was obliged to consult the Senate in the removal as well as in the 
appointment of Federal officers. The Federalist (No. 77.) seemed 



179 

The President of the United States is responsible 
for his actions ; but the person of the King is de- 
clared inviolable by the French Charter. 

Nevertheless, the supremacy of public opinion is 
no less above the head of the one than of the other. 
This power is less definite, less evident, and less 
sanctioned by the laws in France than in America, 
but in fact it exists. In America it acts by elections 
and decrees ; in France it proceeds by revolutions : 
but notwithstanding the different constitutions of 
these two countries, public opinion is the predo- 
minant authority in both of them. The funda- 
mental principle of legislation^ — a principle essen- 
tially republican — is the same in both countries, 
although its consequences maybe different, and its 
results more or less extensive. Whence I am led to 
conclude, that France with its King is nearer akin 
to a republic, than the Union with its President 
is to a monarchy. 

In what I have been saying I have only touched 
upon the main points of distinction ; and if I could 
have entered into details, the contrast would have 
been rendered still more striking. 

I have remarked that the authority of the Presi- 
dent in the United States is only exercised within 
the limits of a partial sovereignty, whilst that of the 

to establish the affirmative; but in 1789 Congress formally de- 
cided that as the President was responsible for his actions, he 
ought not to be forced to employ agents who had forfeited his 
esteem. See Kent's Commentaries, vol. i. p. 289. 

n2 



180 

King in France is undivided. I might have gone on 
to show that the power of the King's government in 
France exceeds its natural limits, however extensive 
they may be, and penetrates in a thousand different 
ways into the administration of private interests. 
Amongst the examples of this influence may be 
quoted that which results from the great number of 
public functionaries, who all derive their appoint- 
ments from the Government. This number now 
exceeds all previous limits; it amounts to 138,000* 
nominations, each of which may be considered as 
an element of power. The President of the United 
States has not the exclusive right of making any 
public appointments, and their whole number 
scarcely exceeds 12,000^ 



ACCIDENTAL CAUSES WHICH MAY INCREASE THE IN- 
FLUENCE OF THE EXECUTIVE GOVERNMENT. 

External security of the Union. — Army of six thousand men. — 
Few ships. — The President has no opportunity of exercising 
his great prerogatives. — In the prerogatives he exercises he is 
weak. 

If the executive government is feebler in America 
than in France, the cause is more attributable to 
the circumstances, than to the laws of the country. 

' The sums annually paid by the State to these officers amount 
to 200,000,000 francs (eight millions sterling). 

2 This number is extracted from the ' National Calendar' for 



181 

It is chiefly in its foreign relations that the exe- 
cutive power of a nation is called upon to exert its 
skill and its vigour. If the existence of the Union 
were perpetually threatened, and if its chief interests 
were in daily connexion with those of other power- 
ful nations, the executive government would assume 
an increased importance in proportion to the mea- 
sures expected of it, and those which it would carry 
into effect. The President of the United States is 
the commander-in-chief of the army, but of an army 
composed of only six thousand men ; he commands 
the fleet, but the fleet reckons but few sail ; he con- 
ducts the foreign relations of the Union, but the 
United States are a nation without neighbours. 
Separated from the rest of the world by the Ocean, 
and too weak as yet to aim at the dominion of the 
seas, they have no enemies, and their interests 
rarely come into contact with those of any other 
nation of the globe. 

The practical part of a Government must not be 
judged by the theory of its constitution. The Pre- 
sident of the United States is in the possession of 
almost royal prerogatives, which he has no oppor- 
tunity of exercising ; and those privileges which he 
can at present use are very circumscribed : the 

1833. The National Calendar is an American Almanac which con- 
tains the names of all the Federal officers. 

It results from this comparison that the King of France has 
eleven times as many places at his disposal as the President, al- 
though the population of France is not much more than double 
that of the Union. 



182 

laws allow him to possess a degree of influence 
which circumstances do not permit him to employ. 
On the other hand, the great strength of the royal 
prerogative in France arises from circumstances far 
more than from the laws. There the executive 
government is constantly struggling against prodi- 
gious obstacles, and exerting all its energies to re- 
press them ; so that it increases by the extent of 
its achievements, and by the importance of the 
events it controls, without modifying its constitu- 
tion. If the laws had made it as feeble and as cir- 
cumscribed as it is in the Union, its influence would 
very soon become still more preponderant. 



WHY THE PRESIDENT OF THE UNITED STATES DOES 
NOT REQUIRE THE MAJORITY OF THE TWO HOUSES 
IN ORDER TO CARRY ON THE GOVERNMENT, 

It is an established axiom in Europe that a constitu- 
tional King cannot persevere in a system of govern- 
ment which is opposed by the two other branches 
of the legislature. But several Presidents of the 
United States have been known to lose the majo- 
rity in the legislative body, without being obliged 
to abandon the supreme power, and without inflict- 
ing a serious evil upon society. I have heard this 
fact quoted as an instance of the independence and 
the power of the executive government in America : 



183 

a moment's reflection will convince us, on the con- 
trary, that it is a proof of its extreme weakness. 

A King in Europe requires the support of the 
legislature to enable him to perform the duties im- 
posed upon him by the Constitution, because those 
duties are enormous. A constitutional King in 
Europe is not merely the executor of the law, but 
the execution of its provisions devolves so com- 
pletely upon him, that he has the power of para- 
lysing its influence if it opposes his designs. He 
requires the assistance of the legislative assem- 
blies to make the law, but those assemblies stand in 
need of his aid to execute it : these two authorities 
cannot subsist without each other, and the mecha- 
nism of government is stopped as soon as they are 
at variance. 

In America the President cannot prevent any law 
from being passed, nor can he evade the obligation 
of enforcing it. His sincere and zealous coopera- 
tion is no doubt useful, but it is not indispensable, 
in the carrying on of public affairs. All his impor- 
tant acts are directly or indirectly submitted to the 
legislature ; and of his own free authority he can do 
but little. It is therefore his weakness, and not his 
power, which enables him to remain in opposition to 
Congress. In Europe, harmony must reign between 
the Crown and the other branches of the legisla- 
ture, because a collision between them may prove 
serious ; in America, this harmony is not indispen- 
sable, because such a collision is impossible. 



184 



ELECTION OF THE PRESIDENT. 

Dangers of the elective system increase in proportion to the ex- 
tent of the prerogative. — This system possible in America be- 
cause no pow^erful executive authority is required. — ^What cir- 
cumstances are favourable to the elective system. — ^Why the 
election of the President does not cause a deviation from the 
principles of the Government. — Influence of the election of the 
President on secondary functionaries. 

The dangers of the system of election applied to 
the head of the executive government of a great 
people have been sufficiently exemplified by expe- 
rience and by history ; and the remarks I arn about 
to make refer to America alone. These dangers 
may be more or less formidable in proportion to 
the place which the executive power occupies, and 
to the importance it possesses in the State ; and 
they may vary according to the mode of election, 
and the circumstances in which the electors are 
placed. The most weighty argument against the 
election of a chief magistrate is, that it offers so 
splendid a lure to private ambition, and is so apt 
to inflame men in the pursuit of power, that when 
legitimate means are wanting, force may not un- 
frequently seize what right denied. 

It is clear that the greater the privileges of the 
executive authority are, the greater is the tempta- 
tion ; the more the ambition of the candidates is ex- 
cited, the more warmly are their interests espoused 
by a throng of partisans who hope to share the 



Î85 

power when their patron has won the prize. The 
dangers of the elective system increase, therefore, in 
the exact ratio of the influence exercised by the 
executive power in the affairs of State. The revo- 
lutions of Poland are not solely attributable to the 
elective system in general, but to the fact that the 
elected monarch was the sovereign of a powerful 
kingdom. Before we can discuss the absolute ad- 
vantages of the elective system, we must make pre- 
liminary inquiries as to whether the geographical 
position, the laws, the habits, the manners, and the 
opinions of the people amoftgst whom it is to be 
introduced, will admit of the establishment of a 
weak and dependent executive government ; for to 
attempt to render the representative of the State a 
powerful sovereign, and at the same time elective, 
is, in my opinion, to entertain two incompatible de- 
signs. To reduce hereditary royalty to the condi- 
tion of an elective authority, the only means that 
I am acquainted with are to circumscribe its sphere 
of action beforehand, gradually to diminish its pre- 
rogatives, and to accustom the people to live with- 
out its protection. Nothing, however, is further 
from the designs of the republicans of Europe than 
this course : as many of them owe their hatred of 
tyranny to the sufferings which they have person- 
ally undergone, it is oppression, and not the extent 
of the executive power, which excites their hostility, 
and they attack the former without perceiving how 
nearly it is connected with the latter. 



186 

Hitherto no citizen has shown any disposition to 
expose his honour and his Hfe in order to become 
the President of the United States ; because the 
power of that office is temporary, Hmited, and sub- 
ordinate. The prize of fortune must be great to 
encourage adventurers in so desperate a game. No 
candidate has as yet been able to arouse the dan- 
gerous enthusiasm or the passionate sympathies of 
the people in his favour, for the very simple reason, 
that when he is at the head of the Government he 
has but little power, but little wealth, and but little 
glory to share amongst his friends ; and his influ- 
ence in the State is too small for the success or the 
ruin of a faction to depend upon the elevation of 
an individual to power. 

The great advantage of hereditary monarchies is, 
that as the private interest of a family is always in- 
timately connected with the interests of the State, 
the executive government is never suspended for a 
single instant ; and if the affairs of a monarchy are 
not better conducted than those of a republic, at 
least there is always some one to conduct them, 
well or ill, according to his capacity. In elective 
States, on the contrary, the wheels of government 
cease to act, as it were of their own accord, at the 
approach of an election, and even for some time 
previous to that event. The laws may indeed ac- 
celerate the operation of the election, which may 
be conducted with such simplicity and rapidity that 
the seat of power will never be left vacant ; but, not- 



187 

withstanding these precautions, a break necessarily 
occurs in the minds of the people. 

At the approach of an election the head of the 
executive government is wholly occupied by the 
coming straggle ; his future plans are doubtful; he 
can undertake nothing new, and he will only prose- 
cute with indifference those designs which another 
will perhaps terminate. '' I am so near the time 
of my retirement from office," said President Jeffer- 
son on the 21st of January, 1809, (six weeks before 
the election,) ^' that I feel no passion, I take no part, 
I express no sentiment. It appears to me just to 
leave to my successor the commencement of those 
measures which he will have to prosecute, and for 
which he will be responsible." 

On the other hand, the eyes of the nation are 
centred on a single point ; all are watching the gra- 
dual birth of so important an event. The wider 
the influence of the executive power extends, the 
greater and the more necessary is its constant action, 
the more fatal is the term of suspense ; and a na- 
tion which is accustomed to the government, or, still 
more, one used to the administrative protection of 
a powerful executive authority, would be infallibly 
convulsed by an election of this kind. In the 
United States the action of the Government may be 
slackened with impunity, because it is always weak 
and circumscribed. 

One of the principal vices of the elective system 
is that it always introduces a certain degree of in- 



188 

stability into the internal and external policy of the 
State. But this disadvantage is less sensibly felt if 
the share of power vested in the elected magistrate 
is small. In Rome the principles of the Government 
underwent no variation, although the Consuls were 
changed every year, because the Senate, which was 
an hereditary assembly, possessed the directing au- 
thority. If the elective system were adopted in 
Europe, the condition of most of the monarchical 
States would be changed at every new election. In 
America the President exercises a certain influence 
on State affairs, but he does not conduct them; the 
preponderating power is vested in the representa- 
tives of the whole nation. The political maxims of 
the country depend therefore on the mass of the 
people, not on the President alone ; and conse- 
quently in America the elective system has no very 
prejudicial influence on the fixed principles of the 
Government. But the want of fixed principles is 
an evil so inherent in the elective system, that it 
is still extremely perceptible in the narrow sphere 
to which the authority of the President extends. 

The Americans have admitted that the head of 
the executive power, who has to bear the whole re- 
sponsibility of the duties he is called upon to fulfill, 
ought to be empowered to choose his own agents, 
and to remove them at pleasure : the legislative bo- 
dies watch the conduct of the President more than 
they direct it. The consequence of this arrange- 
ment is, that at every new election the fate of all the 



189 

Federal public officers is in suspense. Mr. Quincy 
Adams, on his entry into office, discharged the ma- 
jority of the individuals who had been appointed by 
his predecessor : and I am not aware that General 
Jackson allowed a single removeable functionary 
employed in the Federal service to retain his place 
beyond the first year which succeeded his election. 
It is sometimes made a subject of complaint, that in 
the constitutional monarchies of Europe the fate of 
the humbler servants of an Administration depends 
upon that of the ministers. But in elective govern- 
ments this evil is far greater. In a constitutional 
monarchy successive mhiistries are rapidly formed ; 
but as the principal representative of the executive 
power does not change, the spirit of innovation is 
kept within bounds ; the changes which take place 
are in the details rather than in the principles of the 
administrative system : but to substitute one system 
for another, as is done in America every four years 
by law, is to cause a sort of revolution. As to the 
misfortunes which may fall upon individuals in 
consequence of this state of things, it must be al- 
lowed that the uncertain situation of the public 
officers is less fraught with evil consequences in 
America than elsewhere. It is so easy to acquire 
an independent position in the United States, that 
the public officer who loses his place may be de- 
prived of the comforts of life, but not of the means 
of subsistence. 

I remarked at the beginning of this chapter that 



190 

the dangers of the elective system applied to the 
head of the State, are augmented or decreased by 
the peculiar circumstances of the people which 
adopts it. However the functions of the executive 
power may be restricted, it must always exercise a 
great influence upon the foreign policy of the coun- 
try, for a negotiation cannot be opened or success- 
fully carried on otherwise than by a single agent. 
The more precarious and the more perilous the po- 
sition of a people becomes, the more absolute is the 
want of a fixed and consistent external policy, and 
the more dangerous does the elective system of the 
chief magistrate become. The policy of the Ame- 
ricans in relation to the whole world is exceedingly 
simple ; and it may almost be said that no country 
stands in need of them, nor do they require the co- 
operation of any other people. Their independence 
is never threatened. In their present condition, 
therefore, the functions of the executive power are 
no less limited by circumstances than by the laws ; 
and the President may frequently change his line of 
policy without involving the State in difficulty or 
destruction. 

Whatever the prerogatives of the executive power 
may be, the period which immediately precedes an 
election, and the moment of its duration, must 
always be considered as a national crisis, which is 
perilous in proportion to the internal embarrass- 
ments and the external dangers of the country. 
Few of the nations of Europe could escape the ca- 



191 

lamities of anarchy or of conquest, every time they 
might have to elect a new sovereign. In America 
society is so constituted that it can stand without 
assistance upon its own basis ; nothing is to be 
feared from the pressure of external dangers ; and 
the election of the President is a cause of agitation, 
but not of ruin. 



MODE OF ELECTION. 



Skill of the American legislators shown in the mode of election 
adopted by them. — Creation of a special electoral body. — Se- 
parate votes of these electors. — Case in which the House of 
Representatives is called upon to choose the President. — Re- 
sults of the twelve elections which have taken place since the 
Constitution has been established. 

Besides the dangers which are inherent in the sy- 
stem, many other difficulties may arise from the 
mode of election, which may be obviated by the 
precaution of the legislator. When a people met 
in arms on some public spot to choose its head, it 
was exposed to all the chances of civil war resulting 
from so martial a mode of proceeding, besides the 
dangers of the elective system in itself. The Polish 
laws, which subjected the election of the sovereign 
to the veto of a single individual, suggested the 
murder of that individual, or prepared the way to 
anarchy. 

In the examination of the institutions, and the 
political as well as social condition of the United 



192 

States, we are struck by the admirable harmony of 
the gifts of fortune and the efforts of man. That 
nation possessed two of the main causes of internal 
peace ; it was a new country, but it was inhabited 
by a people grown old in the exercise of freedom. 
America had no hostile neighbours to dread ; and 
the American legislators, profiting by these favour- 
able circumstances, created a weak and subordinate 
executive power, which could without danger be 
made elective. 

It then only remained for them to choose the 
least dangerous of the various modes of election ; 
and the rules which they laid down upon this point 
admirably correspond to the securities which the 
physical and political constitution of the country 
already afforded. Their object was to find the mode 
of election which would best express the choice of 
the people with the least possible excitement and 
suspense. It was admitted in the first place that 
the simple majority should be decisive ; but the 
difficulty was to obtain this majority without an 
interval of delay which it was most important to 
avoid. It rarely happens that an individual can at 
once collect the majority of the suffrages of a great 
people ; and this difficulty is enhanced in a repub- 
lic of confederate States, where local influences are 
apt to preponderate. The means by which it was 
proposed to obviate this second obstacle was to de- 
legate the electoral powers of the nation to a body 
of representatives. This mode of election rendered 



193 

a majority more probable ; for the fewer the electors 
are, the greater is the chance of their coming to a 
final decision. It also offered an additional proba- 
bility of a judicious choice. It then remained to 
be decided whether this right of election was to be 
entrusted to the legislative body, the habitual re- 
presentative assembly of the nation, or whether an 
electoral assembly should be formed for the express 
purpose of proceeding to the nomination of a Pre- 
sident. The Americans chose the latter alternative, 
from a belief that the individuals who were returned 
to make the laws were incompetent to represent 
the wishes of the nation in the election of its chief 
magistrate ; and that as they are chosen for more 
than a year, the constituency they represented might 
have changed its opinion in that time.. It was 
thought that if the legislature was empowered to 
elect the head of the executive power, its members 
would, for some time before the election, be exposed 
to the manœuvres of corruption and the tricks of 
intrigue ; whereas the special electors would, like 
a jury, remain mixed up with the crowd till the day 
of action, when they would appear for the sole pur- 
pose of giving their votes. 

It was therefore established that every State 
should name a certain number of electors \ who in 
their turn should elect the President ; and as it had 

1 As many as it sends members to Congress. The number of 
electors at the election of 1833 was 288. (See The National Calen- 
dar, 1833.) 

VOL. I. O 



194 

been observed that the assembhes to which the 
choice of a chief magistrate had been entrusted in 
elective countries, inevitably became the centres of 
passion and of cabal; that they sometimes usurped 
an authority which did not belong to them ; and 
that their proceedings, or the uncertainty which re- 
sulted from them, were sometimes prolonged so 
much as to endanger the welfare of the State, it 
was determined that the electors should all vote 
upon the same day, without being convoked to the 
same place \ This double election rendered a ma- 
jority probable, though not certain ; for it was pos- 
sible that as many differences might exist between 
the electors as between their constituents. In this 
case it was necessary to have recourse to one of 
three measures ; either to appoint new electors, or 
to consult a second time those already appointed, 
or to defer the election to another authority. The 
first two of these alternatives, independently of the 
uncertainty of their results, were likely to delay the 
final decision, and to perpetuate an agitation which 
must always be accompanied with danger. The 
third expedient was therefore adopted, and it was 
agreed that the votes should be transmitted sealed 
to the President of the Senate, and that they should 
be opened and counted in the presence of the Se- 
nate and the House of Representatives. If none 

^ The electors of the same State assemble, but they transmit 
to the central Government the list of their individual votes, and 
not the mere result of the vote of the majority. 



195 

of the candidates has a majority, the House of Re- 
presentatives then proceeds immediately to elect 
the President ; but with the condition that it must 
fix upon one of the three candidates who have the 
highest numbers \ 

Thus it is only in case of an event which cannot 
often happen, and which can never be foreseen, 
that the election is entrusted to the ordinary repre- 
sentatives of the nation ; and even then they are 
obliged to choose a citizen who has already been 
designated by a powerful minority of the special 
electors. It is by this happy expedient that the re- 
spect which is due to the popular voice is combined 
with the utmost celerity of execution and those 
precautions which the peace of the country de- 
mands. But the decision of the question by the 
House of Representatives does not necessarily offer 
an immediate solution of the difficulty, for the ma- 
jority of that assembly may still be doubtful, and 
in this case the Constitution prescribes no remedy. 
Nevertheless, by restricting the number of candi- 
dates to three, and by referring the matter to the 

^ In this case it is the majority of the States, and not the ma- 
jority of the members, which decides the question ; so that New 
York has not more influence in the debate than Rhode Island. 
Thus the citizens of the Union are first consulted as members of 
one and the same community ; and, if they cannot agree, recourse 
is had to the division of the States, each of which has a separate 
and independent vote. This is one of the singularities of the 
Federal Constitution which can only be explained by the jar of 
conflicting interests. 

o2 



196 

judgement of an enlightened public body, it has 
smoothed all the obstacles ^ which are not inherent 
in the elective system. 

In the forty-four years which have elapsed since 
the promulgation of the Federal Constitution, the 
United States have twelve times chosen a President. 
Ten of these elections took place simultaneously 
by the votes of the special electors in the different 
States. The House of Representatives has only 
twice exercised its conditional privilege of deciding 
in cases of uncertainty : the first time was at the 
election of Mr. Jefferson in 1801 ; the second was 
in 1825, when Mr. Quincy Adams was named. 



CRISIS OF THE ELECTION. 

The Election may be considered as a national crisis. — Why? — 
Passions of the people. — Anxiety of the President. — Calm 
which succeeds the agitation of the election. 

I HAVE shown what the circumstances are which 
favoured the adoption of the elective system in the 
United States, and what precautions were taken by 
the legislators to obviate its dangers. The Ame- 
ricans are habitually accustomed to all kinds of 
elections ; and they know by experience the utmost 
degree of excitement which is compatible with se- 

1 Jefferson, in 1801, was not elected until the 36th time of 
balloting. 



197 

curity. The vast extent of the country and the 
dissemination of the inhabitants render a colhsion 
between parties less probable and less dangerous 
there than elsewhere. The political circumstances 
under which the elections have hitherto been carried 
on have presented no real embarrassments to the 
nation. 

Nevertheless, the epoch of the election of a Pre- 
sident of the United States may be considered as a 
crisis in the affairs of the nation. The influence 
which he exercises on public business is no doubt 
feeble and indirect ; but the choice of the Presi- 
dent, which is of small importance to each indivi- 
dual citizen, concerns the citizens collectively; and 
however trifling an interest may be, it assumes a 
great degree of importance as soon as it becomes 
general. The President possesses but few means 
of rewarding his supporters in comparison to the 
kings of Europe, but the places which are at his 
disposal are sufficiently numerous to interest, di- 
rectly or indirectly, several thousand electors in his 
success. Political parties in the United States are 
led to rally round an individual, in order to acquire 
a more tangible shape in the eyes of the crowd, and 
the name of the candidate for the Presidency is put 
forward as the symbol and personification of their 
theories. For these reasons parties are strongly in- 
terested in gaining the election, not so much with 
a view to the triumph of their principles under the 
auspices of the President elect, as to show, by the 



198 

majority which returned him, the strength of the 
supporters of those principles. 

For a long while before the appointed time is at 
hand, the election becomes the most important and 
the all-engrossing topic of discussion. The ardour 
of faction is redoubled ; and all the artificial pas. 
sions which the imagination can create in the bosom 
of a happy and peaceful land are agitated and 
brought to light. The President, on the other 
hand, is absorbed by the cares of self-defence. He 
no longer governs for the interest of the State, but 
for that of his re-election ; he does homage to the 
majority, and instead of checking its passions, as 
his duty commands him to do, he frequently courts 
its worst caprices. As the election draws near, the 
activity of intrigue and the agitation of the popu- 
lace increase ; the citizens are divided into hostile 
camps, each of which assumes the name of its fa- 
vourite candidate; the whole nation glows with fe- 
verish excitement ; the election is the daily theme 
of the public papers, the subject of private conver- 
sation, the end of every thought and every action, 
the sole interest of the present. As soon as the 
choice is determined, this ardour is dispelled ; and 
as a calmer season returns, the current of the State, 
which had nearly broken its banks, sinks to its 
usual level: but who can refrain from astonishment 
at the causes of the storm ? 



199 



RE-ELECTION OF THE PRESIDENT. 

When the head of the executive power is re-eligible, it is the State 
which is the source of intrigue and corruption. — The desire of 
being re-elected the chief aim of a President of the United 
States. — Disadvantage of the system peculiar to America. — 
The natural evil of democracy is that it subordinates all au- 
thority to the slightest desires of the majority. — The re-elec- 
tion of the President encourages this evil. 

It may be asked whether the legislators of the 
United States did right or wrong in allowing the 
re-election of the President, It seems at first sight 
contrary to all reason to prevent the head of the 
executive power from being elected a second time. 
The influence which the talents and the character 
of a single individual may exercise upon the fate of 
a whole people, in critical circumstances or ardu- 
ous times, is well known : a law preventing the re- 
election of the chief magistrate would deprive the 
citizens of the surest pledge of the prosperity and 
the security of the commonwealth ; and, by a sin- 
gular inconsistency, a man would be excluded from 
the government at the very time when he had 
shown his abihty in conducting its affairs. 

But if these arguments are strong, perhaps still 
more powerful reasons may be advanced against 
them. Intrigue and corruption are the natural de- 
fects of elective government ; but when the head 
of the State can be re-elected, these evils rise to a 
great height, and compromise the very existence 



200 

of the country. When a simple candidate seeks 
to rise by intrigue, his manœuvres must neces- 
sarily be limited to a narrow sphere ; but when the 
chief magistrate enters the lists, he borrows the 
strength of the Government for his own purposes. 
In the former case the feeble resources of an indi- 
vidual are in action ; in the latter, the State itself, 
with all its immense influence, is busied in the work 
of corruption and cabal. The private citizen, who 
employs the most immoral practices to acquire 
power, can only act in a manner indirectly prejudicial 
to the public prosperity. But if the representative 
of the executive descends into the combat, the cares 
of government dwindle into second-rate importance, 
and the success of his election is his first concern. 
All laws and all the negotiations he undertakes are 
to him nothing more than electioneering schemes ; 
places become the reward of services rendered, not 
to the nation, but to its chief; and the influence of 
the Government, if not injurious to the country, is 
at least no longer beneficial to the community for 
which it was created. 

It is impossible to consider the ordinary course 
of affairs in the United States without perceiving 
that the desire of being re-elected is the chief aim 
of the President ; that his whole administration, and 
even his most indifferent measures, tend to this ob- 
ject ; and that, as the crisis approaches, his perso- 
nal interest takes the place of his interest in the 
public good. The principle of re-eligibility renders 



201 

the corrupt influence of elective governments still 
more extensive and pernicious. 

In America it exercises a peculiarly fatal influence 
on the sources of national existence. Every Go- 
vernment seems to be afilicted by some evil which 
is inherent in its nature, and the genius of the legis- 
lator is shown in eluding its attacks. A State may 
survive the influence of a host of bad laws, and the 
mischief they cause is frequently exaggerated ; but 
a law which encourages the growth of the canker 
within must prove fatal in the end, although its bad 
consequences may not be immediately perceived. 

The principle of destruction in absolute monar- 
chies lies in the excessive and unreasonable extension 
of the prerogative of the Crown; and a measure tend- 
ing to remove the constitutional provisions w^hich 
counterbalance this influence would be radically 
bad, even if its immediate consequences were unat- 
tended with evil. By a parity of reasoning, in coun- 
tries governed by a democracy, where the people is 
perpetually drawing all authority to itself, the laws 
which increase or accelerate its action are the direct 
assailants of the very principle of the Government. 

The greatest proof of the ability of the American 
legislators is, that they clearly discerned this truth, 
and that they had the courage to act up to it. They 
conceived that a certain authority above the body 
of the people was necessary, which should enjoy a 
degree of independence, without however being 
entirely beyond the popular control ; an authority 



202 

which would be forced to comply with the perma- 
nent determinations of the majority, but which would 
be able to resist its caprices, and to refuse its most 
dangerous demands. To this end they centred 
the whole executive power of the nation in a single 
arm ; they granted extensive prerogatives to the 
President, and they armed him with the veto to re- 
sist the encroachments of the legislature. 

But by introducing the principle of re-election they 
partly destroyed their work ; and they rendered the 
President but little inclined to exert the great power 
they had vested in his hands. If ineligible a second 
time, the President would be far from independent 
of the people, for his responsibility would not be 
lessened ; but the favour of the people would not be 
so necessary to him as to induce him to court it by 
humouring its desires. If re-eligible, (and this is 
more especially true at the present day, when poli- 
tical morality is relaxed, and when great men are 
rare,) the President of the United States becomes 
an easy tool in the hands of the majority. He adopts 
its likings and its animosities, he hastens to antici- 
pate its wishes, he forestalls its complaints, he yields 
to its idlest cravings, and instead of guiding it, 
as the legislature intended that he should do, he is 
ever ready to follow its bidding. Thus, in order not 
to deprive the State of the talents of an individual, 
those talents have been rendered almost useless ; 
and to reserve an expedient for extraordinary perils, 
the country has been exposed to daily dangers. 



203 



FEDERAL COURTS*. 

Political importance of the judiciary in the United States. — 
Difficulty of treating this subject. — Utility of judicial power in 
confederations. — What tribunals could be introduced into the 
Union. — Necessity of establishing federal courts of justice. — 
Organization of the national judiciary. — The Supreme Court. — 
In what it differs from all known tribunals, 

I HAVE inquired into the legislative and executive 
power of the Union, and the judicial power now re- 
mains to be examined ; but in this place I cannot 
conceal my fears from the reader. Their judicial 
institutions exercise a great influence on the con- 
dition of the Anglo-Americans, and they occupy a 
prominent place amongst what are properly called 
political institutions : in this respect they are pe- 
culiarly deserving of our attention. But I am at 
loss to explain the political action of the American 
tribunals without entering into some technical de- 
tails on their Constitution and their forms of pro- 
ceeding ; and I know not how to descend to these 
minutiae without wearying the curiosity of the 

^ See Chapter VI., entitled 'JudicialPower in the United States.' 
This chapter explains the general principles of the American theory 
of judicial institutions. See also The Federal Constitution, 
Art. 3. See The Federalist, Nos. 78 — 83 inclusive; and a work 
entitled ' Constitutional Law,' being a view of the practice and 
jurisdiction of the Courts of the United States, by Thomas Ser- 
geant. See Story, pp. 134, 162, 489, 511, 581, 668; and the 
organic law of the 24th September, 1789, in the Collection of the 
Laws of the United States, by Story, vol. i. p. 53. 



204 

reader by the natural aridity of the subject, or with- 
out risking to fall into obscurity through a desire to 
be succinct. I can scarcely hope to escape these 
various evils ; for if I appear too lengthy to a man of 
the world, a lawyer may on the other hand com- 
plain of my brevity. But these are the natural 
disadvantages of my subject, and more especially 
of the point which I am about to discuss. 

The gi;eat difficulty was, not to devise the Con- 
stitution of the Federal Government, but to find 
out a method of enforcing its laws. Governments 
have in general but two means of overcoming the 
opposition of the people they govern, viz. the phy- 
sical force which is at their own disposal, and the 
moral force which they derive from the decisions 
of the courts of justice. 

A Government which should have no other means 
of exacting obedience than open war, must be very 
near its ruin ; for one of two alternatives would 
then probably occur: if its authority was small, 
and its character temperate, it would not resort to 
violence till the last extremity, and it would connive 
at a number of partial acts of insubordination, in 
which case the State would gradually fall into anar- 
chy ; if it was enterprising and powerful, it would 
perpetually have recourse to its physical strength, 
and would speedily degenerate into a military des- 
potism. So that its activity would not be less pre- 
judicial to the community than its inaction. 

The great end of justice is to substitute the notion 



205 

of right for that of violence ; and to place a legal 
barrier between the power of the Government and 
the use of physical force. The authority which is 
awarded to the intervention of a court of justice 
by the general opinion of mankind is so surpri- 
singly great, that it clings to the mere formalities 
of justice, and gives a bodily influence to the 
shadow of the law. The moral force which courts 
of justice possess renders the introduction of phy- 
sical force exceedingly rare, and is very frequently 
substituted for it ; but if the latter proves to be in- 
dispensable, its power is doubled by the association 
of the idea of law. 

A Federal Government stands in greater need of 
the support of judicial institutions than any other, 
because it is naturally weak, and exposed to for- 
midable opposition \ If it were always obliged to 
resort to violence in the first instance, it could not 
fulfill its task. The Union, therefore, required a 
national judiciary to enforce the obedience of the 
citizens to the laws, and to repel the attacks which 
might be directed against them. The question then 
remained as to what tribunals were to exercise these 
privileges ; were they to be entrusted to the courts 

^ Federal laws are those which most require courts of justice, 
and those at the same time which have most rarely established 
them. The reason is that confederations have usually been formed 
by independent States, which entertained no real intention of 
obeying the central Government, and which very readily ceded 
the right of command to the federal executive, and very pru- 
dently reserved the right of non-compliance to themselves. 



206 

of justice which were already organized in every 
State ? or was it necessary to create federal courts ? 
It may easily be proved that the Union could not 
adapt the judicial power of the States to its wants. 
The separation of the judiciary from the administra- 
tive power of the State no doubt affects the security 
of every citizen, and the liberty of all. But it is 
no less important to the existence of the nation that 
these several powers should have the same origin, 
should follow the same principles, and act in the 
same sphere ; in a word, that they should be corre- 
lative and homogeneous. No one, I presume, ever 
suggested the advantage of trying offences com- 
mitted in France, by a foreign court of justice, in 
order to ensure the impartiality of the judges. The 
Americans form one people in relation to their 
Federal Government; but in the bosom of this 
people divers political bodies have been allowed to 
subsist which are dependent on the national Govern- 
ment in a few points, and independent in all the 
rest ; which have all a distinct origin, maxims pe- 
culiar to themselves, and special means of carrying 
on their affairs. To entrust the execution of the 
laws of the Union to tribunals instituted by these 
political bodies, would be to allow foreign judges 
to preside over the nation. Nay, more ; not only 
is each State foreign to the Union at large, but it 
is in perpetual opposition to the common interests, 
since whatever authority the Union loses turns to 
the advantage of the States. Thus to enforce the 



207 

laws of the Union by means of the tribunals of the 
States, would be to allow not only foreign, but par- 
tial judges to preside over the nation. 

But the number, still more than the mere cha- 
racter, of the tribunals of the States rendered 
them unfit for the service of the nation. When the 
Federal Constitution was formed, there were already 
thirteen courts of justice in the United States which 
decided causes without appeal. That number is 
now increased to twenty-four. To suppose that a 
State can subsist, when its fundamental laws may 
be subjected to four-and-twenty different interpre- 
tations at the same time, is to advance a proposi- 
tion alike contrary to reason and to experience. 

The American legislators therefore agreed to cre- 
ate a federal judiciary power to apply the laws 
of the Union, and to determine certain questions 
affecting general interests, which were carefully 
determined beforehand. The entire judicial power 
of the Union was centred in one tribunal, which 
was denominated the Supreme Court of the United 
States. But, to facilitate the expedition of business, 
inferior courts were appended to it, which were 
empowered to decide causes of small importance 
without appeal, and with appeal causes of more 
magnitude. The members of the Supreme Court 
are named neither by the people nor the legisla- 
ture, but by the President of the United States, 
acting with the advice of the Senate. In order to 
render them independent of the other authorities, 



208 

their office was made inalienable; and it was deter- 
mined that their salary, when once fixed, should 
not be altered by the legislature ^ It was easy to 
proclaim the principle of a Federal judiciary, but 
difficulties multiplied when the extent of its juris- 
diction was to be determined. 



MEANS OF DETERMINING THE JURISDICTION OF 
THE FEDERAL COURTS. 

Difficulty of determining the jurisdiction of separate courts of 
justice in confederations. — The courts of the Union obtained the 
right of fixing their own jurisdiction. — In what respect this 
rule attacks the portion of sovereignty reserved to the several 
States. — The sovereignty of these States restricted by the laws, 
and the interpretation of the laws. — Consequently, the danger 
of the several States is more apparent than real. 

As the Constitution of the United States recog- 
nised two distinct powers, in presence of each 
other, represented in a judicial point of view by 
two distinct classes of courts of justice, the utmost 

1 The Union was divided into districts, in each of which a resi- 
dent Federal judge was appointed, and the court in which he pre- 
sided was termed a * District Court'. Each of the judges of the 
Supreme Court annually visits a certain portion of the Republic, 
in order to try the most important causes upon the spot : the court 
presided over by this magistrate is styled a ' Circuit Court'. Last- 
ly, all the most serious cases of litigation are brought before the 
Supreme Court, which holds a solemn session once a year, at 
which all the judges of the Circuit courts must attend. The 



209 

care which could be taken in defining their sepa- 
rate jurisdictions would have been insufficient to 
prevent frequent collisions between those tribunals. 
The question then arose, to whom the right of de- 
ciding the competency of each court was to be re- 
ferred. 

In nations which constitute a single body politic, 
when a question is debated between two courts re- 
lating to their mutual jurisdiction, a third tribunal 
is generally within reach to decide the difference ; 
and this is effected without difficulty, because in 
these nations the questions of judicial competency 
have no connexion vfith the privileges of the na- 
tional supremacy. But it was impossible to create 
an arbiter between a superior court of the Union and 
the superior court of a separate State which would 
not belong to one of these two classes. It was 
therefore necessary to allow one of these courts to 
judge its own cause, and to take or to retain cogni- 
zance of the point which was contested. To grant 
this privilege to the different courts of the States, 

jury was introduced into the Federal courts in the same manner, 
and in the same cases, as into the courts of the States. 

It will be observed that no analogy exists between the Supreme 
Court of the United States and the French Cour de Cassation, 
since the latter only hears appeals. The Supreme Court decides 
upon the evidence of the fact, as well as upon the law of the case, 
whereas the Cour de Cassation does not pronounce a decision of 
its own, but refers the cause to the arbitration of another tribunal. 
— See the law of the 24th September, 1789, Laws of the United 
States, by Story, vol. i. p. 53. 

VOL. I. P, 



210 

would have been to destroy the sovereignty of the 
Union de facto ^ after having established it de jure ; 
for the interpretation of the Constitution would soon 
have restored that portion of independence to the 
States of which the terms of that act deprived them. 
The object of the creation of a Federal tribunal was 
to prevetit the courts of the States from deciding 
questions affecting the national interests in their 
own department, and so to form a uniform body of 
jurisprudence for the interpretation of the laws of 
the Union. This end would not have been accom- 
plished if the courts of the several States had been 
competent to decide upon cases in their separate 
capacities, from which they were obliged to abstain 
as Federal tribunals. The Supreme Court of the 
United States was therefore invested with the right 
of determining all questions of jurisdiction \ 

This was a severe blow upon the independence 
of the States, which was thus restricted not only by 
the laws, but by the interpretation of them; by one 
limit which was known, and by another which was 

* In order to diminish the number of these suits, it was de- 
cided that in a great many Federal causes the courts of the States 
should be empowered to decide conjointly with those of the Union, 
the losing party having then a right of appeal to the Supreme 
Court of the United States. The Supreme Court of Virginia 
contested the right of the Supreme Court of the United States 
to judge an appeal from its decisions, but unsuccessfully. See 
Kent's Commentaries, vol. i. p. 300, p. 370, et seq. ; Story's Com- 
mentaries, p. 646 ; and The Organic Law of the United States, 
vol. i. p. 35. 



211 

dubious ; by a rule which was certain, and a rule 
which was arbitrary. It is true the Constitution 
had laid down the precise limits of the Federal su- 
premacy, but whenever this supremacy is contested 
by one of the States, a Federal tribunal decides the 
question. Nevertheless, the dangers with which 
the independence of the States was threatened by 
this mode of proceeding are less serious than they 
appeared to be. We shall see hereafter that in 
America the real strength of the country is vested 
in the provincial far more than in the Federal Go- 
vernment. The Federal judges are conscious of the 
relative weakness of the power in whose name they 
act, and they are more inclined to abandon a right 
of jurisdiction in cases where it is justly their own, 
than to assert a privilege to which they have no 
legal claim. 



DIFFERENT CASES OF JURISDICTION. 

The matter and the party are the first conditions of the Federal 
jurisdiction. — Suits in which ambassadors are engaged. — Suits 
of the Union. — Of a separate State. — By whom tried. — Causes 
resulting from the laws of the Union. — Why judged by the 
Federal tribunals. — Causes relating to the non-performance of 
contracts tried by the Federal courts. — Consequences of this 
arrangement. 

After having appointed the means of fixing the 
competency of the Federal courts, the legislators of 
the Union defined the cases which should come with- 

p2 



212 

in their jurisdiction. Ttwas established, on the one 
hand, that certain parties must always be brought 
before the Federal courts, without any regard to the 
special nature of the cause ; and, on the other, that 
certain causes must always be brought before the 
same courts, without any regard to the quality of 
the parties in the suit. These distinctions were 
therefore admitted to be the bases of the Federal 
jurisdiction. 

Ambassadors are the representatives of nations 
in a state of amity with the Union, and whatever 
concerns these personages concerns in some de- 
gree the whole Union. When an ambassador is a 
party in a suit, that suit affects the welfare of the 
nation, and a Federal tribunal is naturally called 
upon to decide it. 

The Union itself may be involved in legal pro- 
ceedings, and in this case it would be alike con- 
trary to the customs of all nations, and to common 
sense, to appeal to a tribunal representing any other 
sovereignty than its own ; the Federal courts, there- 
fore, take cognizance of these affairs. 

When two parties belonging to two different 
States are engaged in a suit, the case cannot with 
propriety be brought before a court of either State. 
The surest expedient is to select a tribunal like 
that of the Union, which can excite the suspicions 
of neither party, and which offers the most natural 
as well as the most certain remedy. 

When the two parties are not private individuals, 



213 

but States, an important political consideration is 
added to the same motive of equity. The quality 
of the parties, in this case, gives a national im- 
portance to all their disputes \ and the most tri- 
fling litigation of the States may be said to involve 
the peace of the whole Union'. 

The nature of the cause frequently prescribes the 
rule of competency. Thus all the questions which 
concern maritime commerce evidently fall under 
the cognizance of the Federal tribunals^. Almost 
all these questions are connected with the inter- 
pretation of the law of nations ; and in this respect 
they essentially interest the Union in relation to fo- 
reign powers. Moreover, as the sea is not included 
within the limits of any peculiar jurisdiction, the 
national courts can only hear causes which origi- 
nate in maritime affairs. 

The Constitution comprises under one head al- 
most all the cases which by their very nature come 

* The Constitution also says that the Federal courts shall decide 
" controversies betweena State and the citizens of another State." 
And here a most important question of a constitutional nature 
arose, which was, whether the jurisdiction given by the Constitu- 
tion in cases in which a State is a party, extended to suits brought 
against a State as well as hy it, or was exclusively confined to 
the latter. The question was most elaborately considered in the 
case of Chisholm v. Georgia, and was decided by the majority of 
the Supreme Court in the affirmative. The decision created ge- 
neral alarm among the States, and an amendment was proposed 
and ratified by which the power was entirely taken away so far 
as it regards suits brought against a State. See Story's Com- 
mentaries, p. 624, or in the large edition §. 1677. 

'2 As, for instance, all cases of piracy. 



214 

within the limits of the Federal courts. The rule 
which it lays down is simple, but pregnant with an 
entire system of ideas, and with a vast multitude 
of facts. It declares that the judicial power of the 
Supreme Court shall extend to all cases in law and 
equity arising under the laws of the United States, 

Two examples will put the intention of the legis- 
lator in the clearest light : 

The Constitution prohibits the States from ma- 
king laws on the value and circulation of money : If, 
notwithstanding this prohibition, a State passes a 
law of this kind, with which the interested parties 
refuse to comply because it is contrary to the Con- 
stitution, the case must come before a Federal 
court, because it arises under the laws of the United 
States. Again, if difficulties arise in the levying 
of import duties which have been voted by Con- 
gress, the Federal Court must decide the case, be- 
cause it arises under the interpretation of a law of 
the United States. 

This rule is in perfect accordance with the fun- 
damental principles of the Federal Constitution. 
The Union, as it was established in 1789, possesses, 
it is true, a limited supremacy ; but it was intended 
that within its limits it should form one and the 
same people \ Within those limits the Union is 

^ This principle was in some measure restricted by the intro- 
duction of the several States as independent powers into the 
Senate, and by allowing them to vote separately in the House of 
Representatives when the President is elected by that body. But 
these are exceptions, and the contrary principle is the rule. 



215 

sovereign. When this point is established and ad- 
mitted, the inference is easy ; for if it be acknow- 
ledged that the United States constitute one and 
the same people within the bounds prescribed by 
their Constitution, it is impossible to refuse them 
the rights which belong to other nations. But it 
has been allowed, from the origin of society, that 
every nation has the right of deciding by its own 
courts those questions which concern the execu- 
tion of its own laws. To this it is answered, that 
the Union is in so singular a position, that in rela- 
tion to some matters it constitutes a people, and 
that in relation to all the rest it is a nonentity. 
But the inference to be drawn is, that in the laws 
relating to these matters the Union possesses all the 
rights of absolute sovereignty. The difficulty is to 
know what these matters are ; and when once it is 
resolved, (and we have shown how it was resolved, 
in speaking of the means of determining the juris- 
diction of the Federal courts,) no further doubt can 
arise ; for as soon as it is established that a suit is 
Federal, that is to say, that it belongs to the share 
of sovereignty reserved by the Constitution to the 
Union, the natural consequence is that it should 
come within the jurisdiction of a Federal court. 

Whenever the laws of the United States are at- 
tacked, or whenever they are resorted to in self- 
defence, the Federal courts must be appealed to. 
Thus the jurisdiction of the tribunals of the Union 
extends and narrows its limits exactly in the same 



216 

ratio as the sovereignty of the Union augments or 
decreases. We have shown that the principal aim 
of the legislators of 1789 was to divide the sove- 
reign authority into two parts. In the one they 
placed the control of all the general interests of 
the Union, in the other the control of the special 
interests of its component States. Their chief so- 
licitude was to arm the Federal Government with 
sufficient power to enable it to resist, within its 
sphere, the encroachments of the several States. 
As for these communities, the principle of indepen- 
dence within certain limits of their own was adopted 
in their behalf ; and they were concealed from the 
inspection, and protected from the control, of the 
central Government. In speaking of the division 
of authority, I observed that this latter principle 
had not always been held sacred, since the States 
are prevented from passing certain laws, which ap- 
parently belong to their own particular sphere of 
interest. When a State of the Union passes a 
law of this kind, the citizens who are injured by its 
execution can appeal to the Federal courts. 

Thus the jurisdiction of the Federal courts ex- 
tends not only to all the cases which arise under 
the laws of the Union, but also to those which 
arise under laws made by the several States in op- 
position to the Constitution. The States are pro- 
hibited from making ex-post-facto laws in criminal 
cases ; and any person condemned by virtue of a 
law of this kind can appeal to the judicial power of 



217 

the Union. The States are hkewise prohibited 
from making laws which may have a tendency to 
impair the obhgations of contracts \ If a citizen 
thinks that an obhgation of this kind is impaired 
by a law passed in his State, he may refuse to obey 
it, and may appeal to the Federal courts'^. 

1 It is perfectly clear, says Mr. Story (Commentaries, p. 503, 
or in the large edition § 1379), that any law which enlarges, 
abridges, or in any manner changes the intention of the parties, 
resulting from the stipulations in the contract, necessarily im- 
pairs it. He gives in the same place a very long and careful de- 
finition of what is understood by a contract in Federal jurispru- 
dence. A grant made by the State to a private individual, and 
accepted by him, is a contract, and cannot be revoked by any 
future law. A charter granted by the State to a company is a 
contract, and equally binding to the State as to the grantee. The 
clause of the Constitution here referred to insures, therefore, the 
existence of a great part of acquired rights, but not of all. Pro- 
perty may legally be held, though it may not have passed into the 
possessor's hands by means of a contract ; and its possession is 
an acquired right, not guaranteed by the Federal Constitution. 

2 A remarkable instance of this is given by Mr. Story (p. 508, 
or in the large edition § 1388). "Dartmouth College in New 
Hampshire had been founded by a charter granted to certain in- 
dividuals before the American Revolution, and its trustees formed 
a corporation under this charter. The legislature of New Hamp- 
shire had, without the consent of this corporation, passed an act 
changing the organization of the original provincial charter of the 
college, and transferring all the rights, privileges, and franchises 
from the old charter trustees to new trustees appointed under the 
act. The constitutionality of the act was contested, and, after 
solemn arguments, it was deliberately held by the Supreme Court 
that the provincial charter was a contract within the meaning of 
the Constitution (Art. L sect. 10.), and that the amendatory act 
was utterly void, as impairing the obligation of that charter. The 
college was deemed, like other colleges of private foundation, to 



218 

This provision appears to me to be the most se- 
rious attack upon the independence of the States. 
The rights awarded to the Federal Government for 
purposes of obvious national importance are definite 
and easily comprehensible : but those with which 
this last clause invests it are not either clearly ap- 
preciable or accurately defined. For there are vast 
numbers of political laws which influence the exist- 
ence of obligations of contracts, which may thus 
furnish an easy pretext for the aggressions of the 
central authority. 

be a private eleemosynary institution, endowed by its charter with 
a capacity to take property unconnected with the Government. 
Its funds were bestowed upon the faith of the charter, and those 
funds consisted entirely of private donations. It is true that the 
uses were in some sense public, that is, for the general benefit, 
and not for the mere benefit of the corporators ; but this did not 
make the corporation a public corporation. It was a private in- 
stitution for general charity. It was not distinguishable in prin- 
ciple from a private donation, vested in private trustees, for a 
public charity, or for a particular purpose of beneficence. And 
the State itself, if it had bestowed funds upon a charity of the 
same nature, could not resume those funds." 

[I have been induced somewhat to extend the mention of this 
case made by the author, because this precedent, whilst it ex- 
plains an important clause in the American Constitution, offers a 
curious if not a weighty opinion on the important question of pri- 
vate grants and foundations as contrasted with what has been 
termed the national property, — a question which may prove the 
most dangerous, as it is now one of the most serious, agitated in 
England. — Translator's Note.'] 



219 



PROCEDURE OF THE FEDERAL COURTS. 

Natural weakness of the judiciary power in confederations. — Le- 
gislators ought to strive as much as possible to bring private 
individuals, and not States, before the Federal Courts. — How 
the Americans have succeeded in this. — Direct prosecution of 
private individuals in the Federal Courts. — Indirect prosecution 
of the States which violate the laws of the Union. — The decrees 
of the Supreme Court enervate but do not destroy the provin- 
cial laws. 

I HAVE shown what the privileges of the Federal 
courts are, and it is no less important to point out 
the manner in which they are exercised. The irre- 
sistible authority of justice in countries in which 
the sovereignty is undivided, is derived from the 
fact, that the tribunals of those countries represent 
the entire nation at issue with the individual against 
whom their decree is directed ; and the idea of power 
is thus introduced to corroborate the idea of right. 
But this is not always the case in countries in which 
the sovereignty is divided ; in them the judicial 
power is more frequently opposed to a fraction of 
the nation than to an isolated individual, and its 
moral authority and physical strength are conse- 
quently diminished. In Federal States the power 
of the judge is naturally decreased, and that of the 
justiciable parties is augmented. The aim of the 
legislator in confederate States ought therefore to 
be, to render the position of the courts of justice 
analogous to that which they occupy in countries 



220 

where the sovereignty is undivided -, in other words, 
his efforts ought constantly to tend to maintain 
the judicial power of the confederation as the re- 
presentative of the nation, and the justiciable party 
as the representative of an individual interest. 

Every Government, whatever may be its consti- 
tution, requires the means of constraining its sub- 
jects to discharge their obligations, and of protect- 
ing its privileges from their assaults. As far as the 
direct action, of the Government on the community 
is concerned, the Constitution of the United States 
contrived, by a master-stroke of policy, that the 
Federal Courts, acting in the name of the laws, 
should only take cognizance of parties in an indi- 
vidual capacity. For, as it had been declared that 
the Union consisted of one and the same people 
within the limits laid down by the Constitution, the 
inference was that the Government created by this 
Constitution, and acting within these limits, was 
invested with all the privileges of a national Go- 
vernment, one of the principal of which is the right 
of transmitting its injunctions directly to the pri- 
vate citizen. When, for instance, the Union votes 
an impost, it does not apply to the States for the 
levying of it, but to every American citizen, in pro- 
portion to his assessment. The Supreme Court, 
which is empowered to enforce the execution of this 
law of the Union, exerts its influence not upon a 
refractory State, but upon the private tax-payer ; 
and, like the judicial power of other nations, it is 



221 

opposed to the person of an individual. It is to be 
observed that the Union chose its own antagonist ; 
and as that antagonist is feeble, he is naturally 
worsted. 

But the difficulty increases v/hen the proceedings 
are not brought forward hy but against the Union. 
The Constitution recognises the legislative power 
of the States ; and a law so enacted may impair the 
privileges of the Union, in which case a collision is 
unavoidable between that body and the State which 
has passed the law : and it only remains to select 
the least dangerous remedy, which is very clearly 
deducible from the general principles I have before 
established \ 

It may be conceived that, in the case under con- 
sideration, the Union might have sued the State 
before a Federal court, which would have annulled 
the act ; and by this means it would have adopted 
a natural course of proceeding : but the judicial 
power would have been placed in open hostiUty to 
the State, and it was desirable to avoid this predi- 
cament as much as possible. The Americans hold 
that it is nearly impossible that a new law should 
not impair the interests of some private individual 
by its provisions : these private interests are as- 
sumed by the American legislators as the ground 
of attack against such measures as may be preju- 
dicial to the Union, and it is to these cases that the 
protection of the Supreme Court is extended. 

* See Chapter VI. on Judicial Power in America. 



222 

Suppose a State vends a certain portion of its 
territory to a company, and that a year afterwards 
it passes a law by which the territory is otherwise 
disposed of, and that clause of the Constitution, 
which prohibits laws impairing the obligation of 
contracts, violated. When the purchaser under the 
second act appears to take possession, the possessor 
under the first act brings his action before the tri- 
bunals of the Union, and causes the title of the 
claimant to be pronounced null and void\ Thus, 
in point of fact, the judicial power of the Union is 
contesting the claims of the sovereignty of a State ; 
but it only acts indirectly and upon a special ap- 
plication of detail : it attacks the law in its conse- 
quences, not in its principle, and it rather weakens 
than destroys it. 

The last hypothesis that remained was that each 
State formed a corporation enjoying a separate ex- 
istence and distinct civil rights, and that it could 
therefore sue or be sued before a tribunal. Thus 
a State could bring an action against another State. 
In this instance the Union was not called upon to 
contest a provincial law, but to try a suit in which 
a State was a party. This suit was perfectly similar 
to any other cause, except that the quality of the 
parties was different ; and here the danger pointed 
out at the beginning of this chapter exists v/ith less 
chance of being avoided. The inherent disadvan- 
tage of the very essence of Federal constitutions is 

' See Kent's Commentaries, vol, i. p. 387. 



223 

that they engender parties in the bosom of the na- 
tion which present powerful obstacles to the free 
course of justice. 



HIGH RANK OF THE SUPREME COURTS AMONGST THE 
GREAT POWERS OF STATE. 

No nation ever constituted so great a judicial power as the Ame- 
ricans. — Extent of its prerogative. — Its political influence. — 
The tranquillity and the very existence of the Union depend 
on the discretion of the seven Federal Judges. 

When we have successively examined in detail the \ 
organization of the Supreme Court, and the entire 
prerogatives which it exercises, we shall readily ad- 
mit that a more imposing judicial power was never 
constituted by any people. The Supreme Court is 
placed at the head of all known tribunals, both by 
the nature of its rights and the class of justiciable 
parties which it controls. 

In all the civilized countries of Europe, the Go- 
vernment has always shown the greatest repugnance 
to allow the cases to which it was itself a party to 
be decided by the ordinary course of justice. This 
repugnance naturally attains its utmost height in an 
absolute Government; and, on the other hand, the 
privileges of the courts of justice are extended with 
the increasing liberties of the people : but no Eu- 
ropean nation has at present held that all judicial 



224 

controversies, without regard to their origin, can be 
decided by the judges of common law. 

In America this theory has been actually put in 
practice ; and the Supreme Court of the United 
States is the sole tribunal of the nation. Its power 
extends to all the cases arising under laws and 
treaties made by the executive and legislative au- 
thorities, to all cases of admiralty and maritime ju- 
risdiction, and in general to all points which affect 
the law of nations. It may even be affirmed that, 
although its constitution is essentially judicial, its 
prerogatives are almost entirely political. Its sole 
object is to enforce the execution of the laws of the 
Union ; and the Union only regulates the relations 
of the Government with the citizens, and of the 
nation with Foreign Powers : the relations of citi- 
zens amongst themselves are almost exclusively re- 
gulated by the sovereignty of the States. 

A second and still greater cause of the prepon- 
derance of this court may be adduced. In the na- 
tions of Europe the courts of justice are only called 
upon to try the controversies of private individuals ; 
but the Supreme Court of the United States sum- 
mons sovereign powers to its bar. When the clerk 
of the court advances on the steps of the tri- 
bunal, and simply says, " The State of New York 
versus the State of Ohio," it is impossible not to 
feel that the court which he addresses is no ordi- 
nary body ; and when it is recollected that one of 
these parties represents one million, and the other 



225 

two millions of men, one is struck by the respon- 
sibility of the seven judges whose decision is about 
to satisfy or to disappoint so large a number of their 
fellow-citizens. 

The peace, the prosperity, and the very existence 
of the Union are vested in the hands of the seven 
judges. Without their active cooperation the Con- 
stitution would be a dead letter : the Executive ap- 
peals to them for assistance against the encroach- 
ments of the legislative powers ; the Legislature 
demands their protection from the designs of the 
Executive ; they defend the Union from the dis- 
obedience of the States, the States from the exag- 
gerated claims of the Union, the public interest 
against the interests of private citizens, and the 
conservative spirit of order against the fleeting in- 
novations of democracy. Their power is enormous, 
but it is clothed in the authority of public opinion. 
They are the all-powerful guardians of a people 
which respects law ; but they would be impotent 
against popular neglect or popular contempt. The 
force of public opinion is the most intractable of 
agents, because its exact limits cannot be defined : 
and it is not less dangerous to exceed, than to re- 
main below the boundary prescribed. 

The Federal judges must not only be good citi- 
zens, and men possessed of that information and 
integrity which are indispensable to magistrates, 
but they must be statesmen, — politicians, not un- 
read in the signs of the times, not afraid to brave 

VOL. I. Q 



226 

the obstacles which can be subdued, nor slow to turn 
aside such encroaching elements as may threaten 
the supremacy of the Union and the obedience which 
is due to the laws. 

The President, who exercises a limited power, 
may err without causing great mischief in the State. 
Congress may decide amiss without destroying the 
Union, because the electoral body in which Con- 
gress originates may cause it to retract its decision 
by changing its members. But if the Supreme 
Court is ever composed of imprudent men or bad 
citizens, the Union may be plunged into anarchy or 
civil war. 

The real cause of this danger, however, does not 
lie in the constitution of the tribunal, but in the 
very nature of Federal Governments. We have 
observed that in confederate peoples it is especially 
necessary to consolidate the judicial authority, be- 
cause in no other nations do those independent 
persons who are able to cope with the social body, 
exist in greater power or in a better condition to 
resist the physical strength of the Government. 
But the more a power requires to be strengthened, 
the more extensive and independent it must be 
made ; and the dangers which its abuse may create 
are heightened by its independence and its strength. 
The source of the evil is not, therefore, in the con- 
stitution of the power, but in the constitution of 
^those States which render its existence necessary. 



227 



IN WHAT RESPECTS THE FEDERAL CONSTITUTION IS 
SUPERIOR TO THAT OF THE STATES. 

In what respects the Constitution of the Union can be compared 
to that of the States. — Superiority of the Constitution of the 
Union attributable to the wisdom of the Federal legislators. — 
Legislature of the Union less dependent on the people than 
that of the States. — Executive power more independent in its 
sphere.— Judicial power less subjected to the inclinations of the 
majority. — Practical consequence of these facts. — The dangers 
inherent in a democratic government eluded by the Federal le- 
gislators, and increased by the legislators of the States. 

The Federal Constitution differs essentially from 
that of the States in the ends which it is intended 
to accomplish ; but in the means by which these ends 
are promoted, a greater analogy exists between them. 
The objects of the Governments are different, but 
their forms are the same ; and in this special point 
of view there is some advantage in comparing them 
together. 

I am of opinion that the Federal Constitution is 
superior to all the Constitutions of the States, for 
several reasons. 

The present Constitution of the Unign was form- 
ed at a later period that those of the majority of the 
States, and it may have derived some ameliorations 
from past experience. But we shall be led to ac- 
knowledge that this is only a secondary cause of its 
superiority, when we recollect that eleven new States 
have been added to the American Confederation 

q2 



228 

since the promulgation of the Federal Constitution, 
and that these new republics have always rather 
exaggerated than avoided the defects which existed 
in the former Constitutions. 

Thé chief cajasei)j[Jhe^u£^^ Federal 

Constitution lay in the chamctei^^f JheJ^^ 
who composed it^^ At the time when it was formed 
the dangers of the Confederation were imminent, 
and its ruin seemed inevitable. In this extremity 
the peopl e chose the men who most deserved the 
esteem , rather than those who had gained the aiFec- 
tions, of the country. I have already observed that, 
distinguished as almost all the legislators of the 
Union were for their intelligence, they were still 
more so for their patriotism. They had all been 
nurtured at a time when the spirit of liberty was 
braced by a continual struggle against a powerful 
and predominant authority. When the contest was 
terminated, whilst the excited passions of the popu- 
lace persisted in warring with dangers which had 
ceased to threaten them, these men stopped short 
in their career ; they cast a calmer and more pene- 
trating look upon the country which was now their 
own ; they perceived that the war of independence was 
definitively ended, and that the only dangers which 
America had to fear were those which might result 
from the abuse of the freedom she had won. They 
had the courage to say what they believed to be true, 
because they were animated by a warm and sincere 
love of liberty ; and they ventured to propose re- 



229 

strictions, because they were resolutely opposed to 
destruction \ 

The greater number of the Constitutions of the 

1 At this time Alexander Hamilton, who was one of the prin- 
cipal founders of the Constitution, ventured to express the fol- 
lowing sentiments in the Federalist, No. 71. : 

" There are some, who would be inclined to regard the servile 
pliancy of the Executive, to a prevailing current, either in the 
community or in the legislature, as its best recommendation. But 
such men entertain very crude notions, as well of the purposes for 
which government was instituted, as of the true means by which 
the public happiness may be promoted. The republican princi- 
ple demands that the deliberative sense of the community should 
govern the conduct of those to whom they intrust the management 
of their affairs ; but it does not require an unqualified compled- 
sance to every sudden breeze of passion, or to every transient im- 
pulse which the people may receive from the arts of men who 
flatter their prejudices to betray their interests. It is a just obser- 
vation that the people commonly intend the public good. This 
often applies to their very errors. But their good sense would 
despise the adulator who should pretend that they always reason 
right about the means of promoting it. They know from expe- 
rience that they sometimes err ; and the wonder is that they so 
seldom err as they do, beset, as they continually are, by the wiles 
of parasites and sycophants ; by the snares of the ambitious, the 
avaricious, the desperate ; by the artifices of men who possess their 
confidence more than they deserve it ; and of those who seek 
to possess, rather than to deserve it. When occasions present 
themselves in which the interests of the people are at variance 
with their inclinations, it is the duty of persons whom they have 
appointed to be the guardians of those interests, to withstand the 
temporary delusion, in order to give them time and opportunity for 
more cool and sedate reflection. Instances might be cited in which 
a conduct of this kind has saved the people from very fatal con- 
sequences of their own mistakes, and has procured lasting monu- 
ments of their gratitude to the men who had courage and magna- 
nimity enough to serve them at the peril of their displeasure." 



230 

States assign one year for the duration of the House 
of Representatives, and two years for that of the 
Senate ; so that members of the legislative body are 
constantly and narrowly tied down by the slightest 
desires of their constituents. The legislators of the 
Union were of opinion that this excessive depen- 
dence of the legislature tended to alter the nature 
of the main consequences of the representative sy- 
stem, since it vested the source not only of authority, 
but of government, in the people. They increased 
the length of the time for which the representatives 
were returned, in order to give them freer scope for 
the exercise of their own judgement. 

The Federal Constitution, as well as the Constitu- 
tions of the different States, divided the legislative 
body into two branches. But in the States these 
two branches w^ere composed of the same elements, 
and elected in the same manner. The consequence 
was that the passions and incUnations of the popu- 
lace were as rapidly and as energetically represented 
in one chamber as in the other, and that laws were 
made with all the characteristics of violence and 
precipitation. By the Federal Constitution the two 
houses originate in like manner in the choice of the 
people ; but the conditions of eligibility and the 
mode of election were changed, to the end that 
if, as is the case in certain nations, one branch of 
the legislature represents the same interests as the 
other, it may at least represent a superior degree 
of intelligence and discretion. A mature age was 



231 

made one of the conditions of the senatorial dignity, 
and the Upper House was chosen by an elected as- 
sembly of a limited number of members. 

To concentrate the whole social force in the hands 
of the legislative body is the natural tendency of 
democracies ; for as this is the power which ema- 
nates the most directly from the people, it is made 
to participate most fully in the preponderating au- 
thority of the multitude, and it is naturally led to 
monopolise every species of influence. This con- 
centration is at once prejudicial to a well-con- 
ducted administration, and favourable to the de- 
spotism of the majority. The legislators of the 
States frequently yielded to these democratic pro- 
pensities, which were invariably and courageously 
resisted by the founders of the Union. 

In the States the executive power is vested in the 
hands of a magistrate, who is apparently placed upon 
a level with the legislature, but who is in reality 
nothing more than the blind agent and the passive 
instrument of its decisions. He can derive no in- 
fluence from the duration of his functions, which ter- 
minate with the revolving year, or from the exercise 
of prerogatives which can scarcely be said to exist. 
The legislature can condemn him to inaction by 
entrusting the execution of the laws to special com- 
mittees of its own members, and can annul his tem- 
porary dignity by depriving him of his salary. The 
Federal Constitution vests all the privileges and all 
the responsibility of the executive power in a single 



232 

individual. The duration of the Presidency is fixed 
at four years ; the salary of the individual who fills 
that office cannot be altered during the term of his 
functions ; he is protected by a body of official de- 
pendents, and armed with a suspensive veto. In 
short, every effort was made to confer a strong and 
independent position upon the executive authority, 
within the limits which had been prescribed to it. 

In the Constitutions of all the States the judicial 
power is that which remains the most independent 
of the legislative authority : nevertheless, in all the 
States the legislature has reserved to itself the right 
of regulating the emoluments of the judges, a practice 
which necessarily subjects these magistrates to its 
immediate influence. In some States the judges are 
only temporarily appointed, which deprives them of 
a great portion of their power and their freedom. 
In others the legislative and judicial powers are en- 
tirely confounded : thus the Senate of New York, 
for instance, constitutes in certain cases the supe- 
rior court of the State. The Federal Constitution, on 
the other hand, carefully separates the judicial au- 
thority from all external influences ; and it provides 
for the independence of the judges, by declaring that 
their salary shall not be altered, and that their func- 
tions shall be inalienable. 

The practical consequences of these different 
systems may easily be perceived. An attentive 
observer will soon remark that the business of the 
Union is incomparably better conducted than that 



233 

of any individual State. The conduct of the Federal 
Government is more fair and more temperate than 
that of the States ; its designs are more fraught with 
wisdom, its projects are more durable and more 
skilfully combined, its measures are put into exe- 
cution with more vigour and consistency. 

I recapitulate the substance of this chapter in a 
few words : 

The existence of democracies is threatened by 
two dangers, viz. the complete subjection of the 
legislative body to the caprices of the electoral body; 
and the concentration of all the powers of the Go- 
vernment in the legislative authority. 

The grow^th of these evils has been encouraged 
by the policy of the legislators of the States ; but it 
has been resisted by the legislators of the Union by 
every means which lay within their control. 



CHARACTERISTICS WHICH DISTINGUISH THE FEDERAL 
CONSTITUTION OF THE UNITED STATES OF AMERICA 
FROM ALL OTHER FEDERAL CONSTITUTIONS. 

American Union appears to resemble all other confederations. — 
Nevertheless its effects are different. — Reason of this. — Di- 
stinctions between the Union and all other confederations. — 
The American Government not a federal, but an imperfect na- 
tional Government. 

The United States of America do not afford either 
the first or the only instance of confederate States, 



234 

several of which have existed in modern Europe, 
without adverting to those of antiquity. Switzer- 
land, the Germanic Empire, and the Repubhc of the 
United Provinces either have been or still are confede- 
rations. In studying the Constitutions of these differ- 
ent countries, the politician is surprised to observe 
that the powers with which they invested the Fede- 
ral Government are nearly identical with the privi- 
leges awarded by the American Constitution to the 
Government of the United States. They confer upon 
the central power the same rights of making peace 
and war, of raising money and troops, and of pro- 
viding for the general exigencies and the common 
interests of the nation. Nevertheless the Federal 
Government of these different peoples has always 
been as remarkable for its weakness and inefficiency 
as that of the Union is for its vigorous and enter- 
prising spirit. Again, the first American Confede- 
ration perished through the excessive weakness of 
its Government ; and this weak Government was, 
notwithstanding, in possession of rights even more 
extensive than those of the Federal Government of 
the present day. But the more recent Constitution of 
the United States contains certain principles which 
exercise a most important influence, although they 
do not at once strike the observer. 

This Constitution, which may at first sight be 
confounded with the federal constitutions which pre- 
ceded it, rests upon a novel theory, which may be 
considered as a great invention in modern poUtical 



235 

science. In all the confederations which had been 
formed before the American Constitution of 1789, 
the allied States agreed to obey the injunctions of 
a Federal Government; but they reserved to them- 
selves the right of ordaining and enforcing the ex- 
ecution of the laws of the Union. The American 
States which combined in 1789 agreed that the Fe- 
deral Government should not only dictate the laws, 
but that it should execute its own enactments. In 
both cases the right is the same, but the exercise 
of the right is different ; and this alteration pro- 
duced the most momentous consequences. 

In all the confederations which had been formed 
before the American Union, the Federal Govern- 
ment demanded its supplies at the hands of the 
separate Governments ; and if the measure it pre- 
scribed was onerous to any one of those bodies, 
means were found to evade its claims : if the State 
was powerful, it had recourse to arms; if it was 
weak, it connived at the resistance which the law of 
the Union, its sovereign, met with, and resorted to 
inaction under the plea of inability . Under these cir- 
cumstances one of two alternatives has invariably 
occurred : either the most preponderant of the allied 
peoples has assumed the privileges of the Fede- 
ral authority, and ruled all the other States in its 
name^; or the Federal Government has been aban- 

^ This was the case in Greece, when Philip undertook to exe- 
cute the decree of the Amphictyons ; in the Low Countries, where 
the province of Holland always gave the law ; and in our own 



236 

doned by its natural supporters, anarchy has arisen 
between the confederates, and the Union has lost 
all powers of action \ 

: (^ In America, the subjects of the Union are not 

States, but private citizens : the national Govern- 

/«sa*^ ; ment levies a tax, not upon the State of Massachu- 
setts, but upon each inhabitant of Massachusetts. 
All former confederate governments presided over 
communities, but that of the Union rules indivi- 
duals ; its force is not borrowed, but self-derived ; 
and it is served by its own civil and military ofà- 
N^ cers, by its own army, and its own courts of justice. 

^ It cannot be doubted that the spirit of the nation, 

the passions of the multitude, and the provincial 
prejudices of each State, tend singularly to diminish 
the authority of a Federal authority thus constitu- 
ted, and to facilitate the means of resistance to its 
mandates ; but the comparative weakness of a re- 
stricted sovereignty is an evil inherent in the Fede- 
ral system. In America, each State has fewer op- 
portunities of resistance, and fewer temptations to 
♦ non-compliance : nor can such a design be put in 
execution (if indeed it be entertained,) without an 
open violation of the laws of the Union, a direct 

time in the Germanic Confederation, in which Austria and Prussia 
\ assume a great degree of influence over the whole country, in the 
name of the Diet. 

1 Such has always been the situation of the Swiss Confedera- 
tion, which would have perished ages ago but for the mutual jea- 
lousies of its neighbours. 



237 

interruption of the ordinary course of justice, and 
a bold declaration of revolt; in a word, without tak- 
ing a decisive step, which men hesitate to adopt. 

In all former confederations the privileges of the 
Union furnished more elements of discord than of 
power, since they multiplied the claims of the na- 
tion without augmenting the -means of enforcing 
them : and in accordance with this fact it may be 
remarked, that the real weakness of federal govern- * 
ments has almost always been in the exact ratio of 
their nominal power. Such is not the case in the 
American Union, in which, as in ordinary govern- 
ments, the Federal Government has the means of 
enforcing all it is empowered to demand. 

The human understanding more easily invents 
new things than new words, and we are thence con- 
strained to employ a multitude of improper and in- 
adequate expressions. When several nations form 
a permanent league, and establish a supreme au- 
thority, which, although it has not the same influ- 
ence over the members of the community as a na- 
tional government, acts upon each of the confede- 
rate States in a body, this government, which is 
so essentially different from all others, is denomi- 
nated a Federal one. Another form of society is 
afterwards discovered, in which several peoples are \ 
fused into one and the same nation with regard to 
certain common interests, although they remain di- ■ 
stinct, or at least only confederate, with regard to 
all their other concerns. In this case the central 



238 

power acts directly upon those whom it governs, 
whom it rules, and whom it judges, in the same 
manner as, but in a more limited circle than, a na- 
tional government. Here the term of Federal go- 
vernment is clearly no longer applicable to a state 
of things which must be styled an incomplete na- 
tional government : a form of government has been 
found out which is neither exactly national nor 
federal; but no further progress has been made, 
and the new word which will one day designate this 
novel invention does not yet exist. 

The absence of this new species of confederation 
has been the cause which has brought all Unions 
to civil war, to subjection, or to a stagnant apathy; 
and the peoples which formed these leagues have 
been either too dull to discern, or too pusillanimous 
to apply, this great remedy. The American Con- 
federation perished by the same defects. 

But the confederate States of America had been 
long accustomed to form a portion of one empire 
before they had won their independence ; they had 
not contracted the habit of governing themselves, 
and their national prejudices had not taken deep 
root in their minds. Superior to the rest of the 
w^orld in political knowledge, and sharing that 
knowledge equally amongst themselves, they were 
little agitated by the passions which generally op- 
pose the extension of federal authority in a nation, 
and those passions were checked by the wisdom of 
the chief citizens. The Americans applied the re- 



239 

medy with prudent firmness as soon as they were 
conscious of the evil ; they amended their laws, and 
they saved their country. 



ADVANTAGES OF THE FEDERAL SYSTEM IN GENERAL, 
AND ITS SPECIAL UTILITY IN AMERICA. 

Happiness and freedom of small nations. — Power of great na- 
tions. — Great empires favourable to the growth of civilization. 
— Strength, often the first element of national prosperity. — 
Aim of the Federal system to unite the twofold advantages 
resulting from a small and from a large territory. — Advantages 
derived by the United States from this system. — The law adapts 
itself to the exigencies of the population ; population does not 
conform to the exigencies of the law. — Activity, amelioration, 
love and enjoyment of freedom in the American communities. 
— ^Public spirit of the Union the abstract of provincial patriot- 
ism. — Principles and things circulate freely over the territory 
of the United States. — The Union is happy and free as a little 
nation, and respected as a great empire. 

In small nations the scrutiny of society penetrates 
into every part, and the spirit of improvement en- 
ters into the most trifling details; as the ambition of 
the people is necessarily checked by its weakness, all 
the efforts and resources of the citizens are turned 
to the internal benefit of the community, and are not 
likely to evaporate in the fleeting breath of glory. 
The desires of every individual are limited, because 
extraordinary faculties are rarely to be met with. 
The gifts of an equal fortune render the various 



240 

conditions of life uniform ; and the manners of the 
inhabitants are orderly and simple. Thus, if one 
estimate the gradations of popular morality and en- 
lightenment, we shall generally find that in small na- 
tions there are more persons in easy circumstances, 
a more numerous population, and a more tranquil 
state of society, than in great empires. 

When tyranny is established in the bosom of a 
small nation, it is more galling than elsewhere, 
because, as it acts within a narrow circle, every 
point of that circle is subject to its direct influence. 
It supplies the place of those great designs which 
it cannot entertain, by a violent or an exasperating 
interference in a multitude of minute details ; and 
it leaves the political world to which it properly 
belongs, to meddle with the arrangements of do- 
mestic life. Tastes as well as actions are to be 
regulated at its pleasure ; and the families of the 
citizens as well as the affairs of the State are to be 
governed by its decisions. This invasion of rights 
occurs, however, but seldom, and freedom is in truth 
the natural state of small communities. The tempt- 
ations which the Government offers to ambition 
are too weak, and the resources of private indivi- 
duals are too slender, for the sovereign power easily 
to fall within the grasp of a single citizen : and 
should such an event have occurred, the subjects 
of the State can without difficulty overthrow the ty- 
rant and his oppression by a simultaneous effort. 

Small nations have therefore ever been the era- 



241 

die of political liberty : and the fact that many of 
them have lost their immunities by extending their 
dominion, shows that the freedom they enjoyed 
was more a consequence of the inferior size than 
of the character of the. people. 

The history of the world affords no instance of a 
great nation retaining the form of republican go- 
vernment for a long series of years ^ and this has 
led to the conclusion that such a state of things is 
impracticable. For my own part, I cannot but 
censure the imprudence of attempting to limit the 
possible, and to judge the future, on the part of a 
being who is hourly deceived by the most palpable 
realities of life, and who is constantly taken by 
surprise in the circumstances with which he is 
most familiar. But it may be advanced with con- 
fidence that the existence of a great republic will 
always be exposed to far greater perils than that of 
a small one. 

All the passions which are most fatal to republi- 
can institutions spread with an increasing territory, 
whilst the virtues which maintain their dignity do 
not augment in the same proportion. The ambi- 
tion of the citizens increases with the power of the 
State ; the strength of parties, with the importance 
of the ends they have in view ; but that devotion 
to the common weal, which is the surest check on 
destructive passions, is not stronger in a large than 

1 I do not speak of a confederation of small republics, but of 
a great consolidated republic. 

VOL. I. R 



242 

in a small republic. It might, indeed, be proved 
without difficulty that it is less powerful and less 
sincere. The arrogance of wealth and the dejection 
of wretchedness, capital cities of unwonted extent, 
a lax morality, a vulgar egotism, and a great con- 
fusion of interests, are the dangers which almost 
invariably arise from the magnitude of States. But 
several of these evils are scarcely prejudicial ta a 
monarchy, and some of them contribute to main- 
tain its existence. In monarchical States the strength 
of the Government is its own ; it may use, but it 
does not depend on the community; and the autho- 
rity of the prince is proportioned to the prosperity 
of the nation : but the only security which a re- 
publican Government possesses against these evils 
lies in the support of the majority. This support is 
not, however, proportionably greater in a large re- 
public than it is in a small one ; and thus whilst 
the means of attack perpetually increase both in 
number and in influence, the power of resistance 
remains the same : or it may rather be said to di- 
minish, since the propensities and interests of the 
people are diversified by the increase of the popu- 
lation, and the difiiiculty of forming a compact ma- 
jority is constantly augmented. It has been ob- 
served, moreover, that the intensity of human pas- 
sions is heightened, not only by the importance of 
the end which they propose to attain, but by the 
multitude of individuals who are animated by them 
at the same time. Every one has had occasion tq 



243 

remark that his emotions in the midst of a sympa- 
thizing crowd are far greater than those which he 
would have felt in solitude. In great republics the 
impetus of political passion is irresistible, not only 
because it aims at gigantic purposes, but because 
it is felt and shared by millions of men at the same 
time. 

It may therefore be asserted as a general pro- 
position, that nothing is more opposed to the well- 
being and the freedom of man than vast empires. 
Nevertheless it is important to acknowledge the pe- 
culiar advantages of great States. For the very rea- 
son which renders the desire of power more intense 
in these communities than amongst ordinary men, 
the love of glory is also more prominent in the 
hearts of a class of citizens, who regard the ap- 
plause of a great people as a reward worthy of 
their exertions, and an elevating encouragement 
to man. If we would learn why it is that great 
nations contribute more powerfully to the spread of 
human improvement than small States, we shall 
discover an adequate cause in the rapid and ener- 
getic circulation of ideas, and in those great cities 
which are the intellectual centres where all the rays 
of human genius are reflected and combined. To 
this it may be added that most important discove- 
ries demand a display of national power which the 
Government of a small State is unable to make ; in 
great nations the Government entertains a greater 
number of general notions, and is more completely 

r2 



244 

disengaged from the routine of precedent and the 
egotism of local prejudice; its designs are conceived 
with more talent, and executed with more boldness. 

In time of peace the well-being of small nations 
is undoubtedly more general and more complete ; 
but they are apt to suffer more acutely from the 
calamities of war than those great empires whose 
distant frontiers may for ages avert the presence of 
the danger from the mass of the people, which is 
therefore more frequently afflicted than ruined by 
the evil. 

But in this matter, as in many others, the argu- 
ment derived from the necessity of the case pre- 
dominates over all others. If none but small na- 
tions existed, I do not doubt that mankind would 
be more happy and more free ; but the existence of 
great nations is unavoidable. 

This consideration introduces the element of phy- 
sical strength as a condition of national prosperity. 

It profits a people but little to be affluent and 
free, if it is perpetually exposed to be pillaged or 
subjugated ; the number of its manufactures and 
the extent of its commerce are of small advantage, 
if another nation has the empire of the seas and 
gives the law in all the markets of the globe. Small 
nations are often impoverished, not because they 
are small, but because they are weak ; and great 
empires prosper less because they are great than 
because they are strong. Physical strength is 
therefore one of the first conditions of the happi- 



245 

ness and even of the existence of nations. Hence 
it occurs, that unless very peculiar circumstances 
intervene, small nations are always united to large 
empires in the end, either by force or by their own 
consent : yet I am unacquainted with a more deplo- 
rable spectacle than that of a people unable either 
to defend or to maintain its independence. 

The Federal system was created with the inten- 
tion of combining the different advantages which 
result from the greater and the lesser extent of na- 
tions ; and a single glance over the United States 
of America suffices to discover the advantages which 
they have derived from its adoption. 

In great centralized nations the legislator is 
obliged to impart a character of uniformity to the 
laws, which does not always suit the diversity of 
customs and of districts -, as he takes no cognizance 
of special cases, he can only proceed upon general 
principles ; and the population is obliged to con- 
form to the exigencies of the legislation, since the 
legislation cannot adapt itself to the exigencies and 
the customs of the population ; which is the cause 
of endless trouble and misery. This disadvantage 
does not exist in confederations ; Congress regulates 
the principal measures of the national Government, 
and all the details of the administration are reserved 
to the provincial legislatures. It is impossible to 
imagine how much this division of sovereignty con- 
tributes to the well-being of each of the States 
which compose the Union. In these small com- 



246 

munities which are never agitated by the desire of 
aggrandizement or the cares of self-defence, all 
public authority and private energy is employed in 
internal amelioration. The central Government of 
each State, which is in immediate juxta-position to 
the citizens, is daily apprized of the wants which 
arise in society ; and new projects are proposed every 
year, which are discussed either at town-meetings 
or by the legislature of the State, and which are 
transmitted by the press to stimulate the zeal and 
to excite the interest of the citizens. This spirit of 
amelioration is constantly alive in the American 
republics, without compromising their tranquillity; 
the ambition of power yields to the less refined and 
less dangerous love of comfort. It is generally be- 
lieved in America that the existence and the per- 
manence of the republican form of government in 
the New World depend upon the existence and 
the permanence of the Federal system ; and it 
is not unusual to attribute a large share of the 
misfortunes which have befallen the new States of 
South America to the injudicious erection of great 
republics, instead of a divided and confederate so- 
vereignty. 

It is incontestably true that the love and the 
habits of republican government in the United 
States were engendered in the townships and in the 
provincial assemblies. In a small State, like that 
of Connecticut for instance, where cutting a canal 
or laying down a road is a momentous political 



247 

question, where the State has no army to pay and 
no wars to carry on, and where much wealth and 
much honour cannot be bestowed upon the chief 
citizens, no form of government can be more natu- 
ral or more appropriate than that of a republic. 
But it is this same republican spirit, it is these 
manners and customs of a free people, which are 
engendered and nurtured in the different States, to 
be afterwards applied to the country at large. The 
public spirit of the Union is, so to speak, nothing 
more than an abstract of the patriotic zeal of the 
provinces. Every citizen of the United States 
transfuses his attachment to his little republic into 
the common store of American patriotism. In de- 
fending the Union, he defends the increasing pro- 
sperity of his own district, the right of conducting 
its affairs, and the hope of causing measures of im- 
provement to be adopted which may be favour- 
able to his own interests ; and these are motives 
which are wont to stir men more readily than the 
general interests of the country and the glory of 
the nation. 

On the other hand, if the temper and the man- 
ners of the inhabitants especially fitted them to pro- 
mote the welfare of a great republic, the Federal 
system smoothed the obstacles which they might 
have encountered. The confederation of all the 
American States presents none of the ordinary dis- 
advantages resulting from great agglomerations of 
men. The Union is a great republic in extent; but 



248 

the paucity of objects for which its Government 
provides assimilates it to a small State. Its acts are 
important, but they are rare. As the sovereignty 
of the Union is Umited and incomplete, its exercise 
is not incompatible with liberty ; for it does not 
excite those insatiable desires of fame and power 
which have proved so fatal to great republics. As 
there is no common centre to the country, vast 
capital cities, colossal wealth, abject poverty, and 
sudden revolutions are alike unknown ; and poli- 
tical passion, instead of spreading over the land like 
a torrent of desolation, spends its strength against 
the interests and the individual passions of every 
State. 

Nevertheless, all commodities and ideas circulate 
throughout the Union as freely as in a country in- 
habited by one people. Nothing checks the spirit 
of enterprise. The Government avails itself of the 
assistance of all who have talents or knowledge to 
serve it. Within the frontiers of the Union the 
profoundest peace prevails, as within the heart of 
some great empire ; abroad, it ranks with the most 
powerful nations of the earth : two thousand miles 
of coast are open to the commerce of the world ; and 
as it possesses the keys of the globe, its flag is re- 
spected in the most remote seas. The Union is as 
happy and as free as a small people, and as glori- 
ous and as strong as a great nation. 



249 



WHY THE FEDERAL SYSTEM IS NOT ADAPTED TO ALL 
PEOPLES, AND HOW THE ANGLO-AMERICANS WERE 
ENABLED TO ADOPT IT. 

Every Federal system contains defects which baffle the efforts of 
the legislator. — The Federal system is complex. — It demands 
a daily exercise of discretion on the part of the citizens. — 
Practical knowledge of government common amongst the 
Americans. — Relative weakness of the Government of the 
Union, another defect inherent in the Federal system. — The 
Americans have diminished without remedying it. — The sove- 
reignty of the separate States apparently weaker, but really 
stronger, than that of the Union. — Why. — Natural causes of 
union must exist between confederate peoples beside the laws. 
— What these causes are amongst the Anglo-Americans. — 
Maine and Georgia, separated by a distance of a thousand miles, 
more naturally united than Normandy and Britany. — War, the 
main peril of confederations. — This proved even by the exam- 
ple of the United States. — The Union has no great wars to 
fear. — ^Why. — Dangers to which Europeans would be exposed 
if they adopted the Federal system of the Americans. 

When alegislator succeeds, after persevering efforts, 
in exercising an indirect influence upon the destiny 
of nations, his genius is lauded by mankind, whilst, 
in point of fact, the geographical position of the 
country which he is unable to change, a social con- 
dition which arose without his cooperation, man- 
ners and opinions which he cannot trace to their 
source, and an origin with which he is unacquainted, 
exercise so irresistible an influence over the courses 
of society, that he is himself borne away by the 
current, after an ineflectual resistance. Like the 



250 

navigator, he may direct the vessel which bears him 
along, but he can neither change its structure, nor 
raise the winds, nor lull the waters which swell be- 
neath him. 

I have shown the advantages which the Ame- 
ricans derive from their Federal system ; it remains 
for me to point out the circumstances which ren- 
dered that system practicable, as its benefits are 
not to be enjoyed by all nations. The incidental 
defects of the Federal system which originate in the 
laws may be corrected by the skill of the legislator, 
but there are further evils inherent in the system 
which cannot be counteracted by the peoples which 
adopt it. These nations must therefore find the 
strength necessary to support the natural imperfec- 
tions of their Government. 

The most prominent evil of all Federal systems is 
the very complex nature of the means they employ. 
Two sovereignties are necessarily in presence of 
each other. The legislator may simplify and equalize 
the action of these two sovereignties, by limiting 
eacli of them to a sphere of authority accurately 
defined ; but he cannot combine them into one, or 
prevent them from coming into collision at certain 
points. The Federal system therefore rests upon a 
theory which is necessarily complicated, and which 
demands the daily exercise of a considerable share 
of discretion on the part of those it governs. 

A proposition must be plain to be adopted by the 
understanding of a people. A false notion which is 



251 

clear and precise will always meet with a greater 
number of adherents in the world than a true prin- 
ciple which is obscure or involved. Hence it arises 
that parties, which are like small communities in the 
heart of the nation, invariably adopt some principle 
or some name as a symbol, which very inadequately 
represents the end they have in view and the means 
which are at their disposal, but without which they 
could neither act nor subsist. The Governments 
which are founded upon a single principle or a 
single feeling which is easily defined, are perhaps 
not the best, but they are unquestionably the strong- 
est and the most durable in the world. 

In examining the Constitution of the United 
States, which is the most perfect Federal Consti- 
tution that ever existed, one is startled, on the other 
hand, at the variety of information and the excel- 
lence of discretion which it presupposes in the peo- 
ple whom it is meant to govern. The Government 
of the Union depends entirely upon legal fictions; 
the Union is an ideal nation which only exists in 
the mind, and whose limits and extent can only be 
discerned by the understanding. 

When once the general theory is comprehended, 
numberless difficulties remain to be solved in its 
application ; for the sovereignty of the Union is so 
involved in that of the States, that it is impossible 
to distinguish its boundaries at the first glance. 
The whole structure of the Government is artificial 
and conventional ; and it would be ill adapted to a 



252 

people which has not been long accustomed to con- 
duct its own affairs, or to one in which the science 
of politics has not descended to the humblest classes 
of society. I have never been more struck by the 
good sense and the practical judgement of the 
Americans than in the ingenious devices by which 
they elude the numberless difficulties resulting from 
their Federal Constitution. I scarcely ever met with 
a plain American citizen who could not distinguish, 
with surprising facility, the obligations created by 
the laws of Congress from those created by the laws 
of his own State ; and who, after having discrimi- 
nated between the matters which come under the 
cognizance of the Union, and those which the local 
legislature is competent to regulate, could not point 
out the exact limit of the several jurisdictions of the 
Federal Courts and the tribunals of the State. 

The Constitution of the United States is like those 
exquisite productions of human industry which en- 
sure wealth and renown to their inventors, but which 
are profitless in any other hands. This truth is ex- 
emplified by the condition of Mexico at the present 
time. The Mexicans were desirous of establishing 
a Federal system, and they took the Federal Con- 
stitution of their neighbours the Anglo-Americans 
as their model, and copied it with considerable ac- 
curacy \ But although they had borrowed the 
letter of the law, they were unable to create or to in- 

1 See the Mexican Constitution of 1824. 



253 

troduce the spirit and the sense which give it Hfe. 
They were involved in ceaseless embarrassments 
between the mechanism of their double Govern- 
ment ; the sovereignty of the States and that of the 
Union perpetually exceeded their respective pri- 
vileges, and entered into collision ; and to the pre- 
sent day Mexico is alternately the victim of anarchy 
and the slave of military despotism. 

The second and the most fatal of all the defects 
I have alluded to, and that which I believe to be 
inherent in the Federal system, is the relative weak- 
ness of the Government of the Union. The prin- 
ciple upon which all confederations rest is that of 
a divided sovereignty. The legislator may render 
this partition less perceptible, he may even conceal 
it for a time from the public eye, but he cannot 
prevent it from existing ; and a divided sovereignty 
must always be less powerful than an entire supre- 
macy. The reader has seen in the remarks I have 
made on the Constitution of the United States, that 
the Americans have displayed singular ingenuity in 
combining the restriction of the power of the Union 
within the narrow limits of a Federal Government, 
with the semblance, and, to a certain extent, with 
the force of a national Government. By this means 
the legislators of the Union have succeeded in di- 
minishing, though not in counteracting, the natural 
danger of confederations. 

It has been remarked that the American Govern- 
ment does not apply itself to the States, but that it 



254 

immediately transmits its injunctions to tlie citizens, 
and compels tliem as isolated individuals to comply 
with its demands. But if the Federal law were to 
clash with the interests and the prejudices of a 
State, it might be feared that all the citizens of that 
State would conceive themselves to be interested in 
the cause of a single individual who should refuse 
to obey. If all the citizens of the State were ag- 
grieved at the same time and in the same manner 
by the authority of the Union, the Federal Govern- 
ment would vainly attempt to subdue them indi- 
vidually ; they would instinctively unite in a com- 
mon defence, and they would derive a ready-pre- 
pared organization from the share of sovereignty 
which the institution of their State allows them to 
enjoy. Fiction would give way to reality, and an 
organized portion of the territory might then con- 
test the central authority. 

The same observation holds good with regard to 
the Federal jurisdiction. If the courts of the Union 
violated an important law of a State in a private 
case, the real, if not the apparent contest would 
arise between the aggrieved State represented by a 
citizen, and the Union represented by its courts of 
justice '. 

* For instance, the Union possesses by the Constitution the 
right of selling unoccupied lands for its own profit. Supposing 
that the State of Ohio should claim the same right in behalf of 
certain territories lying within its boundaries, upon the plea that 
the Constitution refers to those lands alone which do not belong 
to the jurisdiction of any particular State, and consequently should 



OD 



He would have but a partial knowledge of the 
world who should imagine that it is possible, by 
the aid of legal fictions, to prevent men from find- 
ing out and employing those means of gratifying 
their passions which have been left open to them ; 
and it may be doubted whether the American le- 
gislators, when they rendered a collision between 
the two sovereignties less probable, destroyed the 
causes of such a misfortune. But it may even be 
affirmed that they Vv^ere unable to ensure the pre- 
ponderance of the Federal element in a case of this 
kind. The Union is possessed of money and of 
troops, but the affections and the prejudices of the 
people are in the bosom of the States. The sove- 
reignty of the Union is an abstract being, which is 
connected with but few external objects ; the sove- 
reignty of the States is hourly perceptible, easily 
understood, constantly active ; and if the former is 
of recent creation, the latter is coeval with the 
people itself. The sovereignty of the Union is fac- 
titious, that of the States is natural, and derives its 
existence from its own simple influence, like the 
authority of a parent. The supreme power of the 
nation only affects a few of the chief interests of 

choose to dispose of them itself, the litigation would be carried 
on in the names of the purchasers from the State of Ohio and the 
purchasers from the Union, and not in the names of Ohio and the 
Union. But what would become of this legal fiction if the Fe- 
deral purchaser was confirmed in his right by the courts of the 
Union, whilst the other competitor was ordered to retain posses- 
sion by the tribunals of the State of Ohio ? 



256 

society ; it represents an immense but remote coun- 
try, and claims a feeling of patriotism which is vague 
and ill defined : but the authority of the States con- 
trols every individual citizen at every hour and in all 
circumstances ; it protects his property, his freedom, 
and his life ; and when we recollect the traditions, 
the customs, the prejudices of local and familiar 
attachment with which it is connected, we cannot 
doubt of the superiority of a power which is in- 
terwoven with every circumstance that renders the 
love of one's native country instinctive in the hu- 
man heart. 

Since legislators are unable to obviate such 
dangerous collisions as occur between the two sove- 
reignties which co-exist in the Federal system, their 
first object must be, not only to dissuade the confe- 
derate States from warfare, but to encourage such 
institutions as may promote the maintenance of 
peace. Hence it results that the Federal compact 
cannot be lasting unless there exists in the commu- 
nities which are leagued together, a certain number 
of inducements to union which render their common 
dependence agreeable, and the task of the Govern- 
ment light ; and that system cannot succeed with- 
out the presence of favourable circumstances added 
to the influence of good laws. All the peoples 
which have ever formed a confederation have been 
held together by a certain number of common in- 
terests, which served as the intellectual ties of 
association. 



257 

But the sentiments and the principles of man 
must be taken into consideration as well as his im- . 
mediate interests. A certain uniformity of civili- 
zation is not less necessary to the durability of a 
confederation, than a uniformity of interests in the 
States which compose it. In Switzerland the dif- 
ference which exists between the Canton of Uri and 
the Canton of Vaud is equal to that between the 
fifteenth and the nineteenth centuries ; and, properly 
speaking, Switzerland has never possessed a Fede- 
ral Government. The union between these two 
Cantons only subsists upon the map ; and their 
discrepancies would soon be perceived if an attempt 
were made by a central authority to prescribe the 
same laws to the whole territory. 

One of the circumstances which most powerfully 
contribute to support the Federal Government in 
America, is that the States have not only similar 
interests, a common origin, and a common tongue, 
but that they are also arrived at the same stage of 
civilization ; which almost always renders a union 
feasible. I do not know of any European na- 
tion, how small soever it may be, which does not 
present less uniformity in its different provinces 
than the American people, which occupies a terri- 
tory as extensive as one half of Europe. The di- 
stance from the State of Maine to that of Georgia is 
reckoned at about one thousand miles ; but the dif- 
ference between the civilization of Maine and that 
of Georgia is slighter than the difference between 

VOL.1. s 



258 

the habits of Normandy and those of Britany. 
Maine and Georgia, which are placed at the oppo- 
site extremities of a great empire, are consequently 
in the natural possession of more real inducements 
to form a confederation than Normandy and Bri- 
tany, which are only separated by a bridge. 

The geographical position of the country contri- 
buted to increase the facilities which the American 
legislators derived from the manners and customs of 
the inhabitants ; and it is to this circumstance that 
the adoption and the maintenance of the Federal 
system is mainly attributable. 

The most important occurrence which can mark 
the annals of a people is the breaking out of a 
war. In war a people struggles with the energy of 
a single man against foreign nations, in the de- 
fence of its very existence. The skill of a Govern- 
ment, the good sense of the community, and the 
natural fondness which men entertain for their 
country, may suffice to maintain peace in the inte- 
rior of a district, and to favour its internal prospe- 
rity : but a nation can only carry on a great war at 
the cost of more numerous and more painful sacri- 
fices ; and to suppose that a great number of men 
will of their own accord comply with these exigen- 
cies of the State, is to betray an ignorance of man- 
kind. All the peoples which have been obliged to 
sustain a long and serious warfare have conse- 
quently been led to augment the power of their Go- 
vernment. Those which have not succeeded in this 



259 

attempt have been subjugated. A long war almost 
always places nations in the wretched alternative 
of being abandoned to ruin by defeat, or to despo- 
tism by success. War therefore renders the sym- 
ptoms of the weakness of a Government most palpa- 
ble and most alarming ; and I have shown that the 
inherent defect of Federal Governments is that of 
being weak. 

The Federal system is not only deficient in every 
kpd of centralized administration, but the central 
Government itself is imperfectly organized, which 
is invariably an influential cause of inferiority when 
the nation is opposed to other countries which are 
themselves governed by a single authority. In the 
Federal Constitution of the United States, by which 
the central Government possesses more real force, 
this evil is still extremely sensible. An example 
will illustrate the case to the reader. 

The Constitution confers upon Congress the right 
of '^ calling forth militia to execute the laws of the 
Union, suppress insurrections, and repel invasions"; 
and another article declares that the President of 
the United States is the commander-in-chief of the 
miUtia. In the war of 1812 the President ordered 
the militia of the Northern States to march to the 
frontiers ; but Connecticut and Massachusetts, whose 
interests were impaired by the war, refused to obey 
the command. They argued that the Constitution 
authorizes the Federal Government to call forth the 
militia in cases of insurrection or invasion, but that 

s2 



260 

in the present instance there was neither invasion 
nor insurrection. They added, that the same Con- 
stitution which conferred upon the Union the right 
of caUing forth the mihtia, reserved to the States 
that of naming the officers ; and that consequently 
(as they understood the clause) no officer of the 
Union had any right to command the militia, even 
during war, except the President in person : and in 
this case they were ordered to join an army com- 
manded by another individual. These absurd and 
pernicious doctrines received the sanction not only 
of the Governors and the Legislative bodies, but 
also of the courts of justice in both States ; and the 
Federal Government was constrained to raise else- 
where the troops which it required \ 

The only safeguard which the American Union, 
with all the relative perfection of its laws, possesses 
against the dissolution which would be produced by 
a great war, lies in its probable exemption from that 
calamity. Placed in the centre of an immense conti- 

1 Kent's Commentaries, vol. i. p. 244. I have selected an 
example which relates to a time posterior to the promulgation of 
the present Constitution. If I had gone back to the days of the 
Confederation, I might have given still more striking instances. 
The whole nation was at that time in a state of enthusiastic ex- 
citement ; the Revolution was represented by a man who was the 
idol of the people ; but at that very period Congress had, to say 
the truth, no resources at all at its disposal. Troops and supplies 
were perpetually wanting. The best-devised projects failed in the 
execution, and the Union, which was constantly on the verge of 
destruction, was saved by the weakness of its enemies far more 
than by its own strength. 



261 

nent, which offers a boundless field for human in- 
dustry, the Union is almost as much insulated from 
the world as if its frontiers were girt by the Ocean. 
Canada contains only a million of inhabitants, and 
its population is divided into two inimical nations. 
The rigour of the climate limits the extension of its 
territory, and shuts up its ports during the six 
months of winter. From Canada to the Gulf of 
Mexico a few savage tribes are to met with, which 
retire, perishing in their retreat, before six thousand 
soldiers. To the South, the Union has a point of 
contact with the empire of Mexico ; and it is thence 
that serious hostilities may one day be expected to 
arise. But for a long while to come the uncivilized 
state of the Mexican community, the depravity of 
its morals, and its extreme poverty, will prevent 
that country from ranking high amongst nations. 
As for the powers of Europe, they are too distant 
to be formidable. 

The great advantage of the United States does 
not, then, consist in a Federal Constitution which 
allows them to carry on great wars, but in a geo- 
graphical position which renders such enterprises 
extremely improbable. 

No one can be more inclined than I am myself to 
appreciate the advantages of the Federal system, 
which I hold to be one of the combinations most 
favourable to the prosperity and freedom of man. 
I envy the lot of those nations which have been 
enabled to adopt it ; but I cannot believe that any 



262 

confederate peoples could maintain a long or an 
equal contest with a nation of similar strength in 
which the Government should be centralized. A 
people which should divide its sovereignty into frac- 
tional powers, in the presence of the great military 
monarchies of Europe, would in my opinion, by that 
very act, abdicate its power, and perhaps its exis- 
tence and its name. But such is the admirable po- 
sition of the New World, that man has no other 
enemy than himself ; and that in order to be happy 
and to be free, it suffices to seek the gifts of prospe- 
rity and the knowledge of freedom. 



APPENDIX. 



APPENDIX A.— Page 5. 

Jb OR information concerning all the countries of the West 
which have not been visited by Europeans, consult the 
account of two expeditions undertaken at the expense of 
Congress by Major Long. This traveller particularly men- 
tions, on the subject of the great American desert, that a 
line may be drawn nearly parallel to the 20th degree of 
longitude^ (meridian of Washington), beginning from the 
Red River and ending at the river Platte. From this ima- 
ginary line to the Rocky Mountains, which bound the valley 
of the Mississippi on the West, lie immense plains, which 
are almost entirely covered with sand incapable of cultiva- 
tion, or scattered over with masses of granite. In summer 
these plains are quite destitute of water, and nothing is to 
be seen on them but herds of buffaloes and wild horses. 
Some hordes of Indians are also found there, but in no great 
numbers. 

Major Long was told that in travelling northwards from 
the river Platte you find the same desert lying constantly 
on the left ; but he was unable to ascertain the truth of 
this report. (Long's Expedition, vol. ii. p. 361.) 

However worthy of confidence may be the narrative of 

* The 20th degree of longitude according to the meridian of Wash- 
ington, agrees very nearly with the 97th degree on the meridian of 
Greenwich. 



264 

Major Long, it must be remembered that he only passed 
through the country of which he speaks, without deviating 
widely from the line which he had traced out for his 
journey. 



APPENDIX B.— Page 7- 

South America, in the regions between the tropics, pro- 
duces an incredible profusion of climbing-plants, of which 
the Flora of the Antilles alone presents us with forty dif- 
ferent species. 

Among the most graceful of these shrubs is the Passion- 
flower, which, according to Descourtiz, grows with such 
luxuriance in the Antilles, as to climb trees by means of 
the tendrils with which it is provided, and form moving 
bowers of rich and elegant festoons, decorated with blue and 
purple flowers, and fragrant with perfume. (Vol. i. p. 265.) 

The Mimosa scande^is (Acacia à grandes gousses) is a 
creeper of enormous and rapid growth, which climbs from 
tree to tree, and sometimes covers more than half a league. 
(Vol. iii. p. 227.) 



APPENDIX C— Page 10. 

The languages which are spoken by the Indians of Ame- 
rica, from the Pole to Cape Horn, are said to be all formed 
upon the same model, and subject to the same grammatical 
rules ; whence it may fairly be concluded that all the Indian 
nations sprang from the same stock. 

Each tribe of the American continent speaks a different 
dialect ; but the number of languages, properly so called. 



265 

is very small, a fact which tends to prove that the nations 
of the New World had not a very remote origin. 

Moreover, the languages of America have a great degree 
of regularity; from which it seems probable that the tribes 
which employ them had not undergone any great revolu- 
tions, or been incorporated, voluntarily or by constraint, 
with foreign nations. For it is generally the union of 
several languages into one which produces grammatical 
irregularities. 

It is not long since the American languages, especially 
those of the North, first attracted the serious attention of 
philologists, when the discovery was made, that this idiom 
of a barbarous people was the product of a complicated 
system of ideas and very learned combinations. These 
languages were found to be very rich, and great pains had 
been taken at their formation to render them agreeable to 
the ear. 

The grammatical system of the Americans differs from 
all others in several points, but especially in the following : 

Some nations of Europe, amongst others the Germans, 
have the power of combining at pleasure different expres- 
sions, and thus giving a complex sense to certain words. 
The Indians have given a most surprising extension to this 
power, so as to arrive at the means of connecting a great 
number of ideas with a single term. This will be easily 
understood with the help of an example quoted by Mr. Du- 
ponceau, in the Memoirs of the Philosophical Society of 
America. 

^' A Delaware woman playing with a cat or a young 
dog,'' says this writer, "is heard to pronounce the word 
kuligatschis ; which is thus composed : k is the sign of 
the second person, and signifies Hhou' or Hhy'; iili is a part 
of the wovàwuUt, which signifies 'beautiful', ^pretty'; gat 
is another fragment of the word wichgafy which means 



266 

* paw' ; and lastly, schis is a diminutive giving the idea of 
smallness. Thus in one word the Indian woman has ex- 
pressed, ' Thy pretty little paw/ 

Take another example of the felicity with which the 
savages of America have composed their words. A yomig 
man of Delaware is called pilapé. This word is formed 
from pilsit, chaste, innocent ; and lenapé^ man ; viz. man 
in his purity and innocence. 

This facility of combining words is most remarkable 
in the strange formation of their verbs. The most com- 
plex action is often expressed by a single verb, which 
serves to convey all the shades of an idea by the modi- 
fication of its construction. 

Those who may wish to examine more in detail this 
subject, which I have only glanced at superficially, should 
read : 

1. The correspondence of Mr. Duponceau and the Rev. 
Mr. Hecwelder relative to the Indian languages ; which is 
to be found in the first volume of the Memoirs of the Phi- 
losophical Society of America, published at Philadelphia, 
1819, by Abraham Small; vol. i. p. 356—464. 

2. The grammar of the Delaware or Lenape language 
by Geiberger, and the preface of Mr. Duponceau. All these 
are in the same collection, vol. iii. 

3. An excellent account of these works which is at the 
end of the 6th volume of the American Encyclopaedia. 



APPENDIX D.— Page 13. 

See in Charlevoix, vol. i. p. 235, the history of the 
first war which the French inhabitants of Canada carried 
on, in 1610, against the Iroquois. The latter, armed with 



267 

bows and arrows^ offered a desperate resistance to the 
French and their allies. Charlevoix is not a great painter, 
yet he exhibits clearly enough, in this narrative, the con- 
trast between the European manners and those of savages, 
as well as the different way in which the two races of men 
understood the sense of honour. 

When the French, says he, seized upon the beaver-skins 
which covered the Indians who had fallen, the Hurons, 
their allies, were greatly offended at this proceeding ; but 
without hesitation they set to work in their usual manner, 
inflicting horrid cruelties upon the prisoners, and devouring 
one of those who had been killed, which made the French- 
men shudder. The barbarians prided themselves upon a 
scrupulousness which they were surprised at not finding 
in our nation ; and could not understand that there was 
less to reprehend in the stripping of dead bodies than in 
the devouring of their flesh like wild beasts. 

Charlevoix in another place (vol.i.p. 230,) thus describes 
the first torture of which Champlain was an eye-witness, 
and the return of the Hurons into their own village. 

Having proceeded about eight leagues, says he, our 
allies halted ; and having singled out one of their captives, 
they reproached him with all the cruelties which he had 
practised upon the warriors of their nation who had fallen 
into his hands, and told him that he might expect to be 
treated in like manner; adding, that if he had any spirit he 
would prove it by singing. He immediately chanted forth 
his death-song, and then his war-song, and all the songs 
he knew, ^^ but in a very mournful strain,'' says Cham- 
plain, who was not then aware that all savage music has a 
melancholy character. The tortures which succeeded, ac- 
companied by all the horrors which we shall mention here- 
after, terrified the French, who made every effort to put a 
stop to them, but in vain. The following night one of the 



268 

Hurons having dreamt that they were pursued, the retreat 
was changed to a real flight, and the savages never stopped 
until they were out of the reach of danger. 

The moment they perceived the cabins of their own vil- 
lage, they cut themselves long sticks, to which they fast- 
ened the scalps which had fallen to their share, and car- 
ried them in triumph. At this sight, the women swam to 
the canoes, where they received the bloody scalps from 
the hands of their husbands, and tied them round their 
necks. 

The warriors offered one of these horrible trophies to 
Champlain ; they also presented him with some bows and 
arrows, — the only spoils of the Iroquois which they had 
ventured to seize, — entreating him to show them to the 
King of France. 

Champlain lived a whole winter quite alone among these 
barbarians, without being under any alarm for his person 
or property. 



APPENDIX E.— Page 38. 

Although the puritanical strictness which presided over 
the establishment of the English colonies in America is now 
much relaxed, remarkable traces of it are still found in 
their habits and their laws. In 1792, at the very time 
when the anti-Christian republic of France began its ephe- 
meral existence, the legislative body of Massachusetts pro- 
mulgated the following law, to compel the citizens to ob- 
serve the Sabbath. We give the preamble and the prin- 
cipal articles of this law, which is worthy of the reader's 
attention. 



269 

" Whereas/' says the legislator^ " the observation of the 
Sunday is an affair of public interest 5 in as much as it pro- 
duces a necessary suspension of labour, leads men to re- 
flect upon the duties of life and the errors to which hu- 
man nature is liable, and provides for the public and pri- 
vate worship of God the creator and governor of the uni- 
verse, and for the performance of such acts of charity as 
are the ornament and comfort of Christian societies : — 

^' Whereas irreligious or light-minded persons, forget- 
ting the duties which the Sabbath imposes, and the bene- 
fits which these duties confer on society, are known to 
profane its sanctity, by following their pleasures or their 
affairs ; this way of acting being contrary to their own in- 
terest as Christians, and calculated to annoy those who do 
not follow their example ; being also of great injury to so- 
ciety at large, by spreading a taste for dissipation and dis- 
solute manners ; 

Be it enacted and ordained by the Governor, Council, and 
Representatives convened in General Court of Assembly, 
that all and every person and persons shall on that day care- 
fully apply themselves to the duties of religion and piety, 
that no tradesman or labourer shall exercise his ordinary 
calling, and that no game or recreation shall be used on the 
Lord's Day, upon pain of forfeiting ten shillings. 

'' That no one shall travel on that day, or any part there- 
of, under pain of forfeiting twenty shillings ; that no ves- 
sel shall leave a harbour of the colony ; that no persons 
shall keep outside the meeting-house during the time of 
public worship, or profane the time by playing or talking, 
on penalty of five shillings. 

^^ Public-houses shall not entertain any other than stran- 
gers or lodgers, under penalty of five shillings for every 
person found drinking and abiding therein, 

" Any person in health who, without sufficient reason, 



270 

shall omit to worship God in public during three months, 
shall be condemned to a fine of ten shillings. 

'^ Any person guilty of misbehaviour in a place of pub- 
lic worship shall be fined from five to forty shillings. 

^^ These laws are to be enforced by the ty thing-men of 
each township, who have authority to visit public-houses 
on the Sunday. The innkeeper who shall refuse them 
admittance shall be fined forty shillings for such offence. 

" The tything-men are to stop travellers, and require of 
them their reason for being on the road on Sunday : any 
one refusing to answer shall be sentenced to pay a fine not 
exceeding five pounds sterling. If the reason given by the 
traveller be not deemed by the ty thing-man sufiicient, he 
may bring the traveller before the justice of the peace of 
the district. {Lmv of the Sth March, 1792 : General 
Laws of Massachusetts, vol. i. p. 410.) 

On the 11th March, 1797^ a new law increased the 
amount of fines, half of which was to be given to the in- 
former. {Same collection, vol. ii. p. 525.) 

On the 16th February, 1816, a new law confirmed these 
same measures. {Same collection, vol. ii, p. 405.) 

Similar enactments exist in the laws of the State of New 
York, revised in 1827 and 1828. (See Revised Statutes, 
Part I. chapter 20, p. 675.) In these it is declared that 
no one is allowed on the Sabbath to sport, to fish, to play 
at games, or to frequent houses where liquor is sold. No 
one can travel, except in case of necessity. 

And this is not the only trace which the religious strict- 
ness and austere manners of the first emigrants have left 
behind them in the American laws. 

In the revised statutes of the State of New York, vol. i. 
p. 662, is the following clause : 

*^ Whoever shall win or lose in the space of twenty-four 
hours, by gaming or betting, the sum of twenty-five dol- 



271 

lars, shall be found guilty of a misdemeanour, and, upon 
conviction, shall be condemned to pay a fine equal to at 
least five times the value of the sum lost or won ; which 
shall be paid to the inspector of the poor of the township. 
He that loses twenty-five dollars or more may bring an 
action to recover them ; and if he neglects to do so, the 
inspector of the poor may prosecute the winner, and oblige 
him to pay into the poor's box both the sum he has gained 
and three times as much besides/' 

The laws we quote from are of recent date ; but they 
are unintelligible without going back to the very origin of 
the colonies. I have no doubt that in our days the penal 
part of these laws is very rarely applied. Laws preserve 
their inflexibility long after the manners of a nation have 
yielded to the influence of time. It is still true, however, 
that nothing strikes a foreigner on his arrival in America, 
more forcibly than the regard paid to the Sabbath. 

There is one, in particular, of the large American cities, 
in which all social movements begin to be suspended even 
on Saturday evening. You traverse its streets at the hour 
at which you expect men in the middle of life to be en- 
gaged in business, and young people in pleasure ; and you 
meet with solitude and silence. Not only have all ceased to 
work, but they appear to have ceased to exist. Neither 
the movements of industry are heard, nor the accents of 
joy, nor even the confused murmur which arises from the 
midst of a great city. Chains are hung across the streets 
in the neighbourhood of the churches ; the half-closed 
shutters of the houses scarcely admit a ray of sun into the 
dwellings of the citizens. Now and then you perceive a 
solitary individual who glides silently along the deserted 
streets and lanes. 

Next day, at early dawn, the rolling of carriages, the 
noise of hammers, the cries of the population, begin to 



272 

make themselves heard again. The city is awake. An 
eager crowd hastens towards the resort of commerce and 
industry ; everything around you bespeaks motion, bustle, 
hurry. A feverish activity succeeds to the lethargic stupor 
of yesterday ; you might almost suppose that they had 
but one day to acquire wealth and to enjoy it. 



APPENDIX F.— Page 46. 



Ô 



It is unnecessary for me to say, that in the chapter which 
has just been read, I have not had the intention of giving 
a history of America. My only object was to enable the 
reader to appreciate the influence which the opinions and 
manners of the first emigrants had exercised upon the fate 
of the different colonies, and of the Union in general. I 
have therefore confined myself to the quotation of a few 
detached fragments. 

I do not know whether I am deceived, but it appears to 
me that by pursuing the path which I have merely pointed 
out, it would be easy to present such pictures of the Ame- 
rican republics as would not be unworthy the attention of 
the public, and could not fail to suggest to the statesman 
matter for reflection. 

Not being able to devote myself to this labour, I am 
anxious to render it easy to others ; and, for this purpose, 
I subjoin a short catalogue and analysis of the works which 
seem to me the most important to consult. 

At the head of the general documents which it would be 
advantageous to examine, I place the work entitled An 
Historical Collection of State Papers, and other au- 
thentic Documents, intended as materials for a History 
of the United States of America ; hy Ehenezer Hasard. 



273 

The first volume of this compilation, which was printed at 
Philadelphia in 1792, contains a literal copy of all the 
charters granted by the Crown of England to the emigrants, 
as well as the principal acts of the colonial governments, 
during the commencement of their existence. Amongst 
other authentic documents, we here find a great many re- 
lating to the afi'airs of New England and Virginia during 
this period. The second volume is almost entirely devoted 
to the acts of the Confederation of 1643. This Federal 
compact, which was entered into by the colonies of New 
England with the view of resisting the Indians, was the 
first instance of union afforded by the Anglo-Americans. 
There were besides many other confederations of the same 
nature, before the famous one of 177^, which brought 
about the independence of the colonies. 

Each colony has, besides, its own historic monuments, 
some of which are extremely curious ; beginning with Vir- 
ginia, the State which was first peopled. The earliest hi- 
storian of Virginia was its founder, Capt. John Smith. 
Capt. Smith has left us an octavo volume, entitled The 
generall Historié of Virginia and New England, by Cap- 
tain John Smith, sonietymes Governor in those Country es , 
and Admirall of New England ; printed at London in 
1627. The work is adorned with curious maps and engra- 
vings of the time when it appeared ; the narrative extends 
from the year 1584 to 1626. Smith's work is highly and 
deservedly esteemed. The author was one of the most cele- 
brated adventurers of a period of remarkable adventure ; 
his book breathes that ardour for discovery, that spirit of 
enterprise which characterized the men of his time, when 
the manners of chivalry were united to zeal for commerce, 
and made subservient to the acquisition of wealth. 

But Capt. Smith is most remarkable for uniting, to 
the virtues which characterized his cotemporaries, several 

VOL. I. T 



274 

qualities to which they were generally strangers ; his style 
is simple and concise, his narratives bear the stamp of 
truth, and his descriptions are free from false ornament. 

This author throws most valuable light upon the state 
and condition of the Indians at the time when North Ame- 
rica was first discovered. 

The second historian to consult is Beverley, who com- 
mences his narrative with the year 1585, and ends it with 
1 700. The first part of his book contains historical docu- 
ments properly so called, relative to the infancy of the co- 
lony. The second affords a most curious picture of the 
state of the Indians at this remote period. The third con- 
veys very clear ideas concerning the manners, social con- 
dition, laws, and political customs of the Virginians in 
the author's lifetime. 

Beverley was a native of Virginia, which occasions him 
to say at the beginning of his book that he entreats his 
readers not to exercise their critical severity upon it, since, 
having been born in the Indies, he does not aspire to pu- 
rity of language. Notwithstanding this colonial modesty, 
the author shows throughout his book the impatience with 
which he endures the supremacy of the mother-country. 
In this work of Beverley are also found numerous traces 
of that spirit of civil liberty which animated the English 
colonies of America at the time when he wrote. He also 
shows the dissensions which existed among them and re- 
tarded their independence. Beverley detests his Catholic 
neighbours of Maryland even more than he hates the En- 
glish Government : his style is simple, his narrative in- 
teresting and apparently trustworthy. 

I saw in America another work which ought to be con- 
sulted, entitled The History of Virgiîiia, by William 
Stith. This book affords some curious details, but I 
thought it long and diffuse. 



275 

The most ancient as well as the best document to be 
consulted on the history of Carolina is a work in small 
quarto, entitled The History of Carolina^ by John Law- 
son, printed at London in 1718. This work contains in 
the first part, a journey of discovery in the west of Caro- 
lina; the account of which, given in the form of a journal, 
is in general confused and superficial; but it contains a 
very striking description of the mortality caused among 
the savages of that time both by the smallpox and the 
immoderate use of brandy ; with a curious picture of the 
corruption of manners prevalent amongst them, which 
was increased by the presence of Europeans. The second 
part of Lawson^s book is taken up with a description of 
the physical condition of Carolina, and its productions. 
In the third part, the author gives an interesting account 
of the manners, customs, and government of the Indians 
at that period. There is a good deal of talent and origi- 
nality in this part of the work. 

Lawson concludes his History with a copy of the Charter 
granted to the Carolinas in the reign of Charles II. The 
general tone of this work is light, and often licentious, 
forming a perfect contrast to the solemn style of the works 
published at the same period in New England. Lawson' s 
History is extremely scarce in America, and cannot be pro- 
cured in Europe. There is, however, a copy of it in the 
Royal Library at Paris. 

From the southern extremity of the United States I 
pass at once to the northern limit; as the intermediate 
space was not peopled till a later period. 

I must first point out a very curious compilation, entitled 

Collection of the Massachusetts Historical Society, jjrinted 

for the first time at Boston in 1792, and reprinted in 1806. 

The Collection of which I speak, and which is continued 

to the present day, contains a great number of very valu- 

T 2 



276 

able documents relating to the history of the different 
States of New England. Among them are letters which 
have never been published, and authentic pieces which had 
been buried in provincial archives. The whole work of 
Gookin concerning the Indians is inserted there. 

I have mentioned several times in the chapter to which 
this note relates the work of Nathaniel Norton, entitled 
^eiv England's Memorial ; sufficiently perhaps to prove 
that it deserves the attention of those who would be con- 
versant with the history of New England. This book is 
in 8vo, and was reprinted at Boston in 1826. 

The most valuable and important authority which ex- 
ists upon the history of New England is the work of the 
Rev. Cotton Mather, entitled Magnalia Christi Ameri- 
cana, or the Ecclesiastical History of New England, 
1620-1698, 2 vols. 8vo, reprinted at Hartford, United 
States, in 1820 ^ The author divided his work into seven 
books. The first presents the history of the events which 
prepared and brought about the establishment of New 
England. The second contains the lives of the first 
governors and chief magistrates who presided over the 
country. The third is devoted to the lives and labours of 
the evangelical ministers who during the same period had 
the care of souls. In the fourth the author relates the 
institution and progress of the University of Cambridge 
(Massachusetts). In the fifth he describes the principles 
and the discipline of the Church of New England. The 
sixth is taken up in retracing certain facts, which, in the 
opinion of Mather, prove the merciful interposition of 
Providence in behalf of the inhabitants of New England. 
Lastly, in the seventh, the author gives an account of the 
heresies and the troubles to which the Church of New 
England was exposed. Cotton Mather was an evangelical 

^ A folio edition of this work was published in London in 1 702. 



277 

minister who was born at Boston^ and passed his life there. 
His narratives are distinguished by the same ardom- and 
religious zeal which led to the foundation of the colonies 
of New England. Traces of bad taste sometimes occur 
in his manner of writing ; but he interests, because he is 
full of enthusiasm. He is often intolerant, still oftener 
credulous, but he never betrays an intention to deceive. 
Sometimes his book contains fine passages, and true and 
profound reflections, such as the following : 

" Before the arrival of the Puritans,'^ says he, (vol. i. 
chap, iv.) '' there were more than a few attempts of the 
English to people and improve the parts of New England 
which were to the northward of New Plymouth ; but the 
designs of those attempts being aimed no higher than the 
advancement of some worldly interests, a constant series 
of disasters has confounded them, until there was a planta- 
tion erected upon the nobler designs of Christianity : and 
that plantation, though it has had more adversaries than 
perhaps any one upon earth, yet, having obtained help 
from God, it continues to this day." 

Mather occasionally relieves the austerity of his descrip- 
tions with images full of tender feeling : after having spoken 
of an English lady whose religious ardour had brought her 
to America with her husband, and who soon after sank 
under the fatigues and privations of exile, he adds, " As for 
her virtuous husband, Isaac Johnson, 

He tryed 

To live without her, liked it not, and dyed." — (Vol. i.) 

Mather's work gives an admirable picture of the time 
and country which he describes. In his account of the 
motives which led the Puritans to seek an asylum beyond 
seas, he says : 

" The God of Heaven served, as it were, a summons upon 



278 

the spirits of his people in the English nation, stirring up 
the spirits of thousands which never saw the faces of each 
other_, with a most unanimous inclination to leave all the 
pleasant accommodations of their native country, and go 
over a terrible ocean, into a more terrible desert, for the 
pure enjoyment of all his ordinances. It is now reasonable 
that, before we pass any further, the reasons of this under- 
taking should be more exactly made known unto posterity, 
especially unto the posterity of those that were the under- 
takers, lest they come at length to forget and neglect the 
true interest of New England. Wherefore I shall now 
transcribe some of them from a manuscript, wherein they 
were then tendered unto consideration. 

^^ General Considerations for the Plantation of New 
England. 

'^ First, It will be a service unto the Church of great 
consequence, to carry the Gospel unto those parts of the 
world, and raise a bulwark against the kingdom of Anti- 
christ, which the Jesuits labour to rear up in all parts of 
the world. 

" Secondly, All other Churches of Europe have been 
brought under desolations ; and it may be feared that the 
like judgements are coming upon us ; and who knows but 
God hath provided this place to be a refuge for many 
whom he means to save out of the general destruction. 

" Thirdly, The land grows weary of her inhabitants, 
insomuch that man, which is the most precious of all 
creatures, is here more vile and base than the earth he 
treads upon; children, neighbours, and friends, especially 
the poor, are counted the greatest burdens, which, if things 
were right, would be the chiefest of earthly blessings. 

^^ Fourthly, We are grown to that intemperance in all 
excess of riot, as no mean estate almost will suffice a man 



279 

to keep sail with his equals, and he that fails in it must live 
in scorn and contempt : hence it comes to pass, that all 
arts and trades are carried in that deceitful manner and 
unrighteous course^ as it is almost impossible for a good up- 
right man to maintain his constant charge and live com- 
fortably in them. 

" Fifthly, The schools of learning and religion are so 
corrupted, as (beside the unsupportable charge of educa- 
tion) most children, even the best, wittiest, and of the 
fairest hopes, are perverted, corrupted, and utterly over- 
thrown by the multitude of evil examples and licentious 
behaviours in these seminaries. 

'^ Sixthly, The whole earth is the Lord's garden, and 
he hath given it to the Sons of Adam, to be tilled and im- 
proved by them : why then should we stand starving here 
for places of habitation, and in the mean time suffer whole 
countries, as profitable for the use of man, to lie waste 
without any improvement ? 

'^ Seventhly, What can be a better or nobler work, and 
more worthy of a Christian, than to erect and support a 
reformed particular Church in its infancy, and unite our 
forces with such a company of faithful people, as by timely 
assistance may grow stronger and prosper ; but for want of 
it, may be put to great hazards, if not be wholly ruined. 

'^ Eighthly, If any such as are knovrn to be godly, and 
live in vrealth and prosperity here, shall forsake all this to 
join with this reformed Church, and with it run the hazard 
of an hard and mean condition, it will be an example of 
great use, both for the removing of scandal, and to give 
more life unto the faith of God's people in their prayers 
for the plantation, and also to encourage others to join the 
more willingly in it.'' 

Further on, when he declares the principles of the Church 



280 

of New England with respect to morals^ Mather inveighs 
with violence against the custom of drinking healths at 
table, which he denounces as a pagan and abominable 
practice. He proscribes with the same rigour all orna- 
ments for the hair used by the female sex, as well as their 
custom of having the arms and neck uncovered. 

In another part of his work he relates several instances 
of witchcraft which had alarmed New England. It is 
plain that the visible action of the devil in the affairs of 
this world appeared to him an incontestable and evident 
fact. 

This work of Cotton Mather displays, in many places, 
the spirit of civil liberty and political independence which 
characterized the times in which he lived. Their prin- 
ciples respecting government are discoverable at every 
page. Thus, for instance, the inhabitants of Massachusetts, 
in the year 1630, ten years after the foundation of Ply- 
mouth, are found to have devoted 400/. sterling to the 
establishment of the University of Cambridge. In passing 
from the general documents relative to the history of 
New England, to those which describe the several States 
comprised within its limits, I ought first to notice The 
History of the Colony of Massachusetts, by Hutchinson, 
Lieutenant-Governor of the Massachusetts Province, 
2 vols. 8vo. 

The History of Hutchinson, which I have several times 
quoted in the chapter to which this note relates, com- 
mences in the year 1628 and ends in 1750. Throughout 
the work there is a striking air of truth and the greatest 
simplicity of style : it is full of minute details. 

The best History to consult concerning Connecticut is 
that of Benjamin Trumbull, entitled, ^ Complete History 
of Connecticut, Civil and Ecclesiastical, 1630 — 1764^ 
2 vols, 8vo, printed in 1818, «^ New-'Haven, This history 



281 

contains a clear and calm account of all the events which 
happened in Connecticut during the period given in the 
title. The author drew from the best sources ; and his 
narrative bears the stamp of truth. All that he says of the 
early days of Connecticut is extremely curious. See espe- 
cially the Constitution of 1639, vol. i. ch. vi. p. 100; and 
also the Penal Laws of Connecticut, vol. i. ch. vii. p. 123. 

The History of New Hampshire^ hy Jeremy Belknap, 
is a work held in merited estimation. It was printed at 
Boston in 1 792, in 2 vols. 8vo. The third chapter of the first 
volume is particularly worthy of attention for the valuable 
details it affords on the political and religious principles 
of the Puritans, on the causes of their emigration, and on 
their laws. The following curious quotation is given from 
a sermon delivered in 1663. " It concerneth New England 
always to remember that they are a plantation religious, 
not a plantation of trade. The profession of the purity of 
doctrine, worship, and discipline is written upon her fore- 
head. Let merchants, and such as are encreasing cent, per 
cent, remember this, that worldly gain was not the end and 
design of the people of New England, but religion. And 
if any man among us make religion as twelve, and the 
world as thirteen, such an one hath not the spirit of a true 
New Englishman." The reader of Belknap will find in 
his work more general ideas, and more strength of thought, 
than are to be met with in the American historians even to 
the present day. 

Among the Central States which deserve our attention 
for their remote origin, New York and Pennsylvania are 
the foremost. The best history we have of the former is 
entitled A History of Neiv York, by William Smith, 
printed at London in 1757- Smith gives us important 
details of the wars between the French and EngHsh in 



282 

America. His is the best account of the famous confe- 
deration of the Iroquois. 

With respect to Pennsylvania, I cannot do better than 
point out the work of Proud, entitled the History of Penn- 
sylvania, from the original Institution and Settlement 
of that Province, under the first Proprietor and Go- 
vernor William Penn, in 1681, till after the year 1742; 
by Robert Proud, 2 vols. 8vo, printed at Philadelphia in 
1797- This work is deserving of the especial attention of 
the reader ; it contains a mass of curious documents 
concerning Penn, the doctrine of the Quakers, and the 
character, manners, and customs of the first inhabitants 
of Pennsylvania. 

I need not add that among the most important docu- 
ments relating to this State are the Works of Penn him- 
self and those of Franklin. 



APPENDIX G.— Page 57- 

We read in Jefferson's Memoirs as follows : 
^^ At the time of the first settlement of the English in 
Virginia, when land was to be had for little or nothing, 
some provident persons having obtained large grants of it, 
and being desirous of maintaining the splendour of their 
families, entailed their property upon their descendants. 
The transmission of these estates from generation to gene- 
ration, to men who bore the same name, had the effect of 
raising up a distinct class of families, who, possessing by 
law the privilege of perpetuating their wealth, formed by ^, 
these means a sort of patrician order, distinguished by the 



283 

grandeur and luxury of their establishments. From this 
order it was that the King usually chose his councillors 
of state K 

In the United States, the principal clauses of the En- 
glish law respecting descent have been universally rejected. 
The first rule that we follow, says Mr. Kent, touching in- 
heritance, is the following : If a man dies intestate, his 
property goes to his heirs in a direct line. If he has but 
one heir or heiress, he or she succeeds to the whole. If 
there are several heirs of the same degree, they divide the 
inheritance equally amongst them, without distinction of 
sex. 

This rule was prescribed for the first time in the State 
of New York by a statute of the 23rd of February, 1786. 
{See Revised Statutes, vol. iii.. Appendix, p. 48.) It has 
since then been adopted in the revised statutes of the same 
State. At the present day this law holds good throughout 
the whole of the United States, with the exception of the 
State of Vermont, where the male heir inherits a double 
portion : Kent's Commentaries, vol. iv. p. 370. Mr. Kent, 
in the same work, vol. iv. p. 1 — 22, gives an historical ac- 
count of American legislation on the subject of entail: by 
this we learn that previous to the revolution the colonies 
followed the English law of entail. Estates tail were abo- 
lished in Virginia in 1776, on a motion of Mr. Jefferson. 
They were suppressed in New York in 1786^ and have since 
been abolished in North Carolina, Kentucky, Tennessee, 
Georgia, and Missouri. In Vermont, Indiana, Illinois, 
South Carolina, and Louisiana, entail was never introduced. 
Those States which thought proper to preserve the English 
law of entail, modified it in such a way as to deprive it of 

» This passage is extracted and translated from M. Conseil's work 
upon the Life of Jefferson, entitled " Mélanges Politiques et Philo- 
sophiques de Jefferson.'' 



284 

its most aristocratic tendencies. " Our general principles 
on the subject of government/' says Mr. Kent, ^^tend to 
favour the free circulation of property."' 

It cannot fail to strike the French reader vrho studies 
the law of inheritance, that on these questions the French 
legislation is infinitely more democratic even than the 
American. 

The American law makes an equal division of the father's 
property, but only in the case of his will not being known ; 
*^ for every man," says the law, " in the State of New 
York, {Revised Statutes, vol. iii.. Appendix, p. 51,) has 
entire liberty, power, and authority, to dispose of his pro- 
perty by will, to leave it entire, or divided in favour of any 
persons he chooses as his heirs, provided he do not leave 
it to a political body or any corporation." The French 
law obliges the testator to divide his property equally, or 
nearly so, among his heirs. 

Most of the American republics still admit of entails, 
under certain restrictions ; but the French law prohibits 
entail in all cases. 

If the social condition of the Americans is more demo- 
cratic than that of the French, the laws of the latter are 
the most democratic of the two. This may be explained 
more easily than at first appears to be the case. In France, 
democracy is still occupied in the work of destruction ; in 
America it reigns quietly over the ruins it has made. 



285 



APPENDIX H.— Page 68. 

SUMMARY OF THE QUALIFICATIONS OF VOTERS IN THE 
UNITED STATES. 

All the States agree in granting the right of voting at 
the age of twenty-one. In all of them it is necessary to 
have resided for a certain time in the district where the 
vote is given. This period varies from three months to 
two years. 

As to the qualification ; in the State of Massachusetts 
it is necessary to have an income of three pounds sterling 
or a capital of sixty pounds. 

In Rhode Island, a man must possess landed property 
to the amount of 133 dollars. 

In Connecticut, he must have a property which gives an 
income of seventeen dollars. A year of service in the mi- 
litia also gives the elective privilege. 

In New Jersey, an elector must have a property of fifty 
pounds a year. 

In South Carolina and Maryland, the elector must pos- 
sess fifty acres of land. 

In Tennessee, he must possess some property. 

In the States of Mississippi, Ohio, Georgia, Virginia, 
Pennsylvania, Delaware, New York, the only necessary 
qualification for voting is that of paying the taxes ; and in 
most of the States, to serve in the militia is equivalent 
to the payment of taxes. 

In Maine and New Hampshire any man can vote who 
is not on the pauper list. 

Lastly, in the States of Missouri, Alabama, Illinois, 
Louisiana, Indiana, Kentucky, and Vermont, the conditions 
of voting have no reference to the property of the elector. 



286 

I believe there is no other State beside that of North 
Carolina in which different conditions are applied to 
the voting for the Senate and the electing the House 
of Representatives. The electors of the former, in this 
case, should possess in property fifty acres of land ; to vote 
for the latter, nothing more is required than to pay taxes. 



APPENDIX I.— Page 131. 

The small number of Custom-house officers employed in 
the United States compared with the extent of the coast ren- 
ders smuggling very easy; notwithstanding which it is less 
practised than elsewhere, because everybody endeavours to 
press it. In America there is no police for the prevention 
of fires, and such accidents are more frequent than in 
Europe ; but in general they are more speedily extin- 
guished, because the surrounding population is prompt in 
lending assistance. 



APPENDIX K.—Page 133. 

It is incorrect to assert that centralization was produced 
by the French revolution : the revolution brought it to 
perfection, but did not create it. The mania for centrali- 
zation and government regulations dates from the time 
when jurists began to take a share in the government, in 
the time of Philippe-le-Bel ; ever since which period they 
have been on the increase. In the year 1775, M. de Males- 



287 

herbes^ speaking in the name of the Cour des Aides, said 
to Louis XIV. 1 

" Every corporation and every community of 

citizens, retained the right of administering its own affairs; 
a right which not only, forms part of the primitive con- 
stitution of the kingdom, but has a still higher origin ; for 
it is the right of nature, and of reason. Nevertheless your 
subjects. Sire, have been deprived of it ; and we cannot re- 
frain from saying that in this respect your government has 
fallen into puerile extremes. From the time when power- 
ful ministers made it a political principle to prevent the 
convocation of a national assembly, one consequence has 
succeeded another, until the deliberations of the inhabitants 
of a village are declared null when they have not been au- 
thorized by the Intendant. Of course, if the community 
has an expensive undertaking to carry through, it must 
remain under the control of the sub-delegate of the Inten- 
dant, and consequently follow the plan he proposes, em- 
ploy his favourite workmen, pay them according to his 
pleasure ; and if an action at law is deemed necessary, the 
Intendant' s permission must be obtained. The cause must 
be pleaded before this first tribunal, previous to its being 
carried into a public court ; and if the opinion of the In- 
tendant is opposed to that of the inhabitants, or if their 
adversary enjoys his favour, the community is deprived of 
the power of defending its rights. Such are the means. 
Sire, which have been exerted to extinguish the municipal 
spirit in France ; and to stifle, if possible, the opinions of 
the citizens. The nation may be said to lie under an in- 
terdict, and to be in wardship under guardians.'' 

What could be said more to the purpose at the present 



* See * Mémoires pour servir à l'Histoire du Droit Public de la France 
en matière d'impôts,' p. 654, printed at Brussels in 1779. 



288 

day, when the revolution has achieved what are called its 
victories in centralization ? 

In 17 S9, Jefferson wrote from Paris to one of his friends : 
" There is no country where the mania for over- governing 
has taken deeper root than in France, or been the source 
of greater mischief." Letter to Madison, 28th August, 
1789. 

The fact is that for several centuries past the central 
power of France has done everything it could to extend cen- 
tral administration ; it has acknowledged no other limits 
than its own strength. The central power to which the 
revolution gave birth made more rapid advances than any 
of its predecessors, because it was stronger and wiser than 
they had been ; Louis XIV. committed the welfare of such 
communities to the caprice of an Intendant ; Napoleon left 
them to that of the Minister. The same principle governed 
both, though its consequences were more or less remote. 



APPENDIX L.— Page 140. 

This immutability of the Constitution of France is a 
necessary consequence of the laws of that country. 

To begin with the most important of all the laws, that 
which decides the order of succession to the Throne 5 what 
can be more immutable in its principle than a political or- 
der founded upon the natural succession of father to son ? 
In 1814 Louis XVIII. had established the perpetual law 
of hereditary succession in favour of his own family. The 
individuals who regulated the consequences of the revolu- 
tion of 1830 followed his example ; they merely esta- 
blished the perpetuity of the law in favour of another fa- 



289 

mily. In this respect they imitated the Chancellor Mean- 
pou^ who^ when he erected the new parliament upon the 
ruins of the old^ took care to declare in the same ordinance 
that the rights of the new magistrates should be as inalien- 
able as those of their predecessors had been* 

The laws of 1830^ like those of 1814^ point out no way 
of changing the Constitution : and it is evident that the or- 
dinary means of legislation are insufficient for this purpose. 
As the King, the Peers, and the Deputies all derive their 
authority from the Constitution, these three powers united 
cannot alter a law by virtue of which alone they govern. 
Out of the pale of the Constitution, they are nothing : 
where, then, could they take their stand to effect a change 
in its provisions ? The alternative is clear : either their 
efforts are powerless against the Charter, which continues 
to exist in spite of them, in which case they only reign in 
the name of the Charter ; or, they succeed in changing the 
Charter, and then the law by which they existed being 
annulled, they themselves cease to exist. By destroying 
the Charter they destroy themselves. 

This is much more evident in the laws of 1830 than in 
those of 1814. In 1814, the royal prerogative took its 
stand above and beyond the Constitution; but in 1830, 
it was avowedly created by, and dependent on, the Con- 
stitution. 

A part therefore of the French Constitution is immuta- 
ble, because it is united to the destiny of a family; and the 
body of the Constitution is equally immutable, because 
there appear to be no legal means of changing it. 

These remarks are not applicable to England. That 
country having no written Constitution, who can assert 
when its Constitution is changed ? 



VOL. I. 



290 



APPENDIX M.— Page 140. 

The most esteemed authors who have written upon the 
English Constitution agree with each other in establishing 
the omnipotence of the Parliament. 

Delolme says, " It is a fundamental principle with the 
English lawyers, that Parliament can do everything except 
making a woman a man, or a man a woman.'' 

Blackstone expresses himself more in detail, if not more 
energetically, than Delolme, in the following terms : 

*^ The power and jurisdiction of Parliament, says Sir 
Edward Coke, (4. Inst. 36.) is so transcendent and abso- 
lute, that it cannot be confined, either for causes or per- 
sons, within any bounds. And of this high Court, he 
adds, may be truly said, ^ Si antiquitatem species, est ve- 
tustissima ; si dignitatem, est honor atissima ; sijurisdic- 
tionem, est capacissimaJ It hath sovereign and uncon- 
trollable authority in the making, confirming, enlarging, 
restraining, abrogating, repealing, reviving and expounding 
of laws, concerning matters of all possible denominations ; 
ecclesiastical or temporal; civil, military, maritime, or 
criminal ; this being the place where that absolute despo- 
tic power which must, in all Governments, reside some- 
where, is entrusted by the Constitution of these kingdoms. 
All mischiefs and grievances, operations and remedies, that 
transcend the ordinary course of the laws, are within the 
reach of this extraordinary tribunal. It can regulate or 
new-model the succession to the Crown ; as was done in 
the reign of Henry VIII. and William III. It can alter 
the established religion of the land ; as was done in a va- 
riety of instances in the reigns of King Henry VIII. and 
his three children. It can change a7id create afresh even 



291 

the Constitution of the kingdom, and of parliaments them- 
selves ; as was done by the Act of Union and the several 
statutes for triennial and septennial elections. It can, in 
short, do everything that is not naturally impossible to 
be done ; and, therefore, some have not scrupled to call its 
povrer, by a figure rather too bold, the omnipotence of 
Parliament.*' 



APPENDIX N.— Page 156. 

There is no question upon which the American Consti- 
tutions agree more fully than upon that of political juris- 
diction. All the Constitutions which take cognizance of 
this matter, give to the House of Delegates the exclusive 
right of impeachment 5 excepting only the Constitution of 
North Carolina, which grants the same privilege to grand 
juries. (Article 23.) 

Almost all the Constitutions give the exclusive right of 
pronouncing sentence to the Senate, or to the Assembly 
which occupies its place. 

The only punishments which the political tribunals can 
inflict are removal, or the interdiction of public functions 
for the future. There is no other Constitution but that of 
Virginia, (p. 152,) which enables them to inflict every 
kind of punishment. 

The crimes which are subject to political jurisdiction 
are, in the Federal Constitution, (Section 4. Art. 1.) ; in 
that of Indiana, (Art. 3. paragraphs 23 and 24.) ; of New 
York, (Art. 5.) ; of Delaware, (Art. 5.) ; high treason, bri- 
bery, and other high crimes or offences. 

In the Constitution of Massachusetts, (Chap. i. Sec- 

u 2 



292 

tion 2.); that of North Carolina, (Art. 23.) ; of Virginia,, 
(p. 252,) misconduct and maladministration. 

In the Constitution of New Hampshire, (p. 105,) cor- 
ruption, intrigue, and maladministration. 

In Vermont, (Chap. II., Art. 24.) maladministration. 

In South Carolina, (Art. 5.) ; Kentucky, (Art. 5.); Ten- 
nessee, (Art. 4,) ; Ohio, (Art. 1 . § 23, 24.) ; Louisiana, 
(Art. 5.) ; Mississippi, (Art. 5.) ; Alabama, (Art. 6.) ; 
Pennsylvania, (Art. 4.) ; crimes committed in the non- 
performance of official duties. 

In the States of Illinois, Georgia, Maine, and Connec- 
ticut, no particular offences are specified. 



APPENDIX O. 

It is true that the powers of Europe may carry on ma- 
ritime wars with the Union ; but there is always greater 
facility and less danger in supporting a maritime than a 
continental war. Maritime warfare only requires one 
species of effort. A commercial people which consents to 
furnish its Government with the necessary funds, is sure 
to possess a fleet. And it is far easier to induce a nation 
to part with its money, almost unconsciously, than to re- 
concile it to sacrifices of men and personal efforts. More- 
over defeat by sea rarely compromises the existence or in- 
dependence of the people which endures it. 

As for continental wars, it is evident that the nations of 
Europe cannot be formidable in this way to the American 
Union. It would be very difficult to transport and main- 
tain in America more than 25,000 soldiers ; an army which 
may be considered to represent a nation of about 2,000,000 
of men. The most populous nation of Europe contending in 
this way against the Union, is in the position of a nation 



293 

of 2^000^000 of inhabitants at war with one of 12,000,000. 
Add to this, that America has all its resources within reach, 
whilst the European is at 4,000 miles distance from his ; 
and that the immensity of the American continent would of 
itself present an insurmountable obstacle to its conquest. 



APPENDIX P. 

Constitutio7i of the United States. 

We, the people of the United States, in order to form 
a more perfect union, establish justice, ensure domestic 
tranquillity, provide for the common defence, promote the 
general welfare, and secure the blessings of liberty to 
ourselves and our posterity, do ordain and establish this 
Constitution for the United States of America. 

ARTICLE I. — SECTION 1. 

1 . All legislative powers herein granted, shall be vested 
in a Congress of the United States, which shall consist of 
a Senate and a House of Representatives. 

SECTION 2. 

1. The House of Representatives shall be composed of 
members chosen every second year by the people of the 
several States -, and the electors in each State shall have 
the qualifications requisite for electors of the most numer- 
ous branch of the State legislature. 

2. No person shall be a Representative who shall not 
have attained to the age of twenty-five years, and been se- 
ven years a citizen of the United States, and who shall not, 
when elected, be an inhabitant of that State in which he 
shall be chosen. 



294 

3. Representatives and direct taxes shall be apportioned 
among the several States which may be included within 
this Union, according to their respective numbers, which 
shall be determined by adding to the whole number of free 
persons, including those bound to service for a term of 
years, and excluding Indians not taxed, three fifths of all 
other persons. The actual enumeration shall be made 
within three years after the first meeting of the Congress 
of the United States, and within every subsequent term of 
ten years, in such manner as they shall by law direct. 
The number of representatives shall not exceed one for 
every thirty thousand, but each State shall have at least 
one representative ; and until such enumeration shall be 
made, the State of JVew Hampshire shall be entitled to 
choose three ; Massachusetts eight ; Rhode Island and 
Providence Plantations one ; Connecticut five ; New 
YorXr six; New Jersey iowr ; PermsT/lvania eight; Dela- 
ware one ; Maryland six ; Virginia ten ; North Caro- 
lina five ; South Carolina five ; and Georgia three. 

4. When vacancies happen in the representation from 
any State, the executive authority thereof shall issue writs 
of election to fill up such vacancies. 

5. The House of Representatives shall choose their 
speaker and other officers, and shall have the sole power 
of impeachment. 

SECTION 3. 

1. The Senate of the United States shall be composed 
of two senators from each State, chosen by the legislature 
thereof, for six years ; and each senator shall have one 
vote. 

2. Immediately after they shall be assembled in conse- 
quence of the first election, they shall be divided, as equally 



295 

as may be, into three classes. The seats of the senators 
of the first class shall be vacated at the expiration of the 
second year ; of the second class at the expiration of the 
fourth year ; and of the third class at the expiration of the 
sixth year ; so that one third may be chosen every second 
year ; and if vacancies happen, by resignation or otherwise, 
during the recess of the legislature of any State, the exe- 
cutive thereof may make temporary appointment until the 
next meeting of the legislature, which shall then fill such 
vacancies. 

3. No person shall be a senator who shall not have at- 
tained to the age of thirty years, and been nine years a 
citizen of the United States, and who shall not, when 
elected, be an inhabitant of that State for which he shall 
be chosen. 

4. The Vice-President of the United States shall be Pre- 
sident of the Senate, but shall have no vote, unless they 
be equally divided. 

5 . The Senate shall choose their other officers, and also 
a president pro tempore, in the absence of the vice-presi- 
dent, or when he shall exercise the office of President of 
the United States. 

6. The Senate shall have the sole power to try all im- 
peachments. When sitting for that purpose, they shall 
be on oath or affirmation. When the President of the 
United States is tried, the chief justice shall preside ; and 
no person shall be convicted without the concurrence of 
two thirds of the members present. 

7. Judgement, in case of impeachment, shall not extend 
further than to removal from office, and disqualification 
to hold and enjoy any office of honour, trust, or profit, 
under the United States ; but the party convicted shall 
nevertheless be liable and subject to indictment, trial, 
judgement, and punishment according to law. 



296 



SECTION 4. 



1. The times, places, and manner of holding elections 
for senators and representatives, shall be prescribed in each 
State by the legislature thereof ; but the Congress may, 
at any time, by law, make or alter such regulations, except 
as to the places of choosing senators. 

2. The Congress shall assemble at least once in every 
year, and such meeting shall be on the first Monday in 
December, unless they shall by lavi^ appoint a different 
day. 

SECTION 5. 

1 . Each House shall be the judge of the elections, re- 
turns, and qualifications of its own members -, and a ma- 
jority of each shall constitute a quorum to do business ; 
but a smaller number may adjourn from day to day, and 
may be authorized to compel the attendance of absent mem- 
bers, in such manner and under such penalties as each 
House may provide. 

2. Each House may determine the rules of its proceed- 
ings, punish its members for disorderly behaviour, and, 
with the concurrence of two thirds, expel a member. 

3. Each House shall keep a journal of its proceedings, 
and from time to time publish the same, excepting such, 
parts as may in their judgement require secrecy ; and the 
yeas and nays of the members of either House, on any ques- 
tion, shall, at the desire of one fifth of those present, be 
entered on the journal. 

4. Neither House, during the session of Congress, shall, 
without the consent of the other, adjourn for more than 
three days, nor to any other place than that in which the 
two Houses shall be sitting. 



297 



SECTION 6. 



1. The senators and representatives shall receive a com- 
pensation for their services^ to be ascertained by law, and 
paid out of the treasury of the United States. They shall, 
in all cases, except treason, felony, and breach of the 
peace, be privileged from arrest during their attendance at 
the session of their respective Houses, and in going to or 
returning from the same ; and for any speech or debate 
in either House, they shall not be questioned in any other 
place. 

2. No senator or representative shall, during the time 
for which he was elected, be appointed to any civil office 
under the authority of the United States which shall have 
been created, or the emoluments whereof shall have been 
increased, during such time ; and no person holding any 
office under the United States shall be a member of either 
House during his continuance in office. 

SECTION 7* 

1. All bills for raising revenue shall originate in the 
House of Representatives; but the Senate may propose or 
concur with amendments, as on other bills. 

2. Every bill which shall have passed the House of Re- 
presentatives and the Senate, shall, before it become a law, 
be presented to the President of the United States; if he 
approve, he shall sign it ; but if not, he shall return it, 
with his objections, to that House in which it shall have 
originated, who shall enter the objection at large on their 
journal, and proceed to re-consider it. If, after such re- 
consideration, two thirds of that House shall agree to pass 
the bill, it shall be sent, together with the objections, to 



298 

the otlier house^ by which it shall likewise be re-considered^ 
and if approved by two thirds of that House, it shall be- 
come a law. But in all such cases, the votes of both Houses 
shall be determined by yeas and nays, and the names of 
the persons voting for and against the bill shall be entered 
on the journal of each House respectively. If any bill shall 
not be returned by the President within ten days (Sundays 
excepted) after it shall have been presented to him, the 
same shall be a law in like manner as if he had signed it, 
unless the Congress by their adjournment prevent its re- 
turn, in which case it shall not be a law. 

3. Every order, resolution, or vote, to which the con- 
currence of the Senate and House of Representatives may 
be necessary, (except on a question of adjournment,) shall 
be presented to the President of the United States ; and 
before the same shall take effect, shall be approved by him, 
or being disapproved by him, shall be repassed by two 
thirds of the Senate and House of Representatives, ac- 
cording to the rules and limitations prescribed in the case 
of a bill. 

SECTION 8. 

The Congress shall have power — 

1. To lay and collect taxes, duties, imposts, and excises; 
to pay the debts and provide for the common defence and 
general welfare of the United States ; but all duties, im- 
posts, and excises, shall be uniform throughout the United 
States : 

2. To borrow money on the credit of the United States : 

3. To regulate commerce with foreign nations, and 
among the several States, and with the Indian tribes: 

4. To establish a uniform rule of naturalization, and uni- 
form laws on the subject of bankruptcies throughout the 
United States. 



299 

6. To coin money, regulate the value thereof, and of 
foreign coin, and fix the standard of weights and mea- 
sures : 

6. To provide for the punishment of counterfeiting the 
securities and current coin of the United States : 

7. To establish post offices and post roads : 

8. To promote the progress of science and useful arts, 
by securing, for limited times, to authors and inventors, 
the exclusive right to their respective writings and dis- 
coveries : 

9. To constitute tribunals inferior to the supreme court: 
To define and punish piracies and felonies committed on 
the high seas, and offences against the law of nations : 

10. To declare war, grant letters of marque and reprisal, 
and make rules concerning captures on land and water : 

1 1 . To raise and support armies ; but no appropriation 
of money to that use shall be for a longer term than two 
years : 

12. To provide and maintain a navy : 

13. To make rules for the government and regulation 
of the land and naval forces : 

14. To provide for calling forth the militia to execute 
the laws of the Union, suppress insurrections, and repel 
invasions : 

15. To provide for organizing, arming, and disciplining 
the militia, and for governing such part of them as may be 
employed in the service of the United States, reserving to 
the States respectively the appointment of the officers, and 
the authority of training the militia according to the dis- 
cipline prescribed by Congress : 

16. To exercise exclusive legislation in all cases what- 
soever, over such district (not exceeding ten miles square,) 
as may, by cession of particular States, and the acceptance 
of Congress, become the seat of government of the United 



300 

States, and to exercise like authority over all places pur- 
chased, by the consent of the legislature of the State in 
which the same shall be, for the erection of forts, maga- 
zines, arsenals, dock-yards, and other needful buildings : 
— and, 

17. To make all laws which shall be necessary and 
proper for carrying into execution the foregoing powers, 
and all other powers vested by this Constitution in the Go- 
vernment of the United States, or in any department or 
officer thereof. 

SECTION 9. 

1 . The migration or importation of such persons as any 
of the States now existing shall think proper to admit, 
shall not be prohibited by the Congress prior to the year 
one thousand eight hundred and eight ; but a tax or duty 
may be imposed on such importation, not exceeding ten 
dollars for each person. 

2. The privilege of the writ of habeas corpus shall not 
be suspended, unless when, in cases of rebellion or inva- 
sion, the public safety may require it. 

3. No bill of attainder, or ex post facto law, shall be 
passed. 

4. No capitation or other direct tax shall be laid, un- 
less in proportion to the census or enumeration herein 
before directed to be taken. 

5 . No tax or duty shall be laid on articles exported from 
any State. No preference shall be given by any regulation 
of commerce or revenue to the ports of one State over those 
of another : nor shall vessels bound to or from one State, 
be obliged to enter, clear, or pay duties in another. 

6. No money shall be drawn from the treasury, but in 
consequence of appropriations made by law ; and a regu- 
lar statement and account of the receipts and expendi- 



301 

tures of all public money shall be published from time to 
time. 

7. No title of nobility shall be granted by the United 
States, and no person holding any office of profit or trust 
under them, shall, without the consent of the Congress, 
accept of any present, emolument, office, or title of any 
kind whatever, from any king, prince, or foreign state. 

SECTION 10. 

1 . No State shall enter into any treaty, alliance, or con- 
federation ; grant letters of marque and reprisal ; coin 
money; emit bills of credit; make anything but gold 
and silver coin a tender in payment of debts ; pass any 
bill of attainder, ex post facto law, or law impairing the 
obligation of contracts ; or grant any title of nobility. 

2. No State shall, without the consent of the Congress, 
lay any imposts or duties on imports or exports, except 
what maybe absolutely necessary for executing its inspec- 
tion laws ; and the neat produce of all duties and imposts, 
laid by any State on imports or exports, shall be for the 
use of the treasury of the United States, and all such laws 
shall be subject to the revision and control of the Congress. 
No State shall, without the consent of Congress, lay any 
duty of tonnage, keep troops or ships of war in time of 
peace, enter into any agreement or compact with another 
State, or with a foreign power, or engage in war, unless 
actually invaded, or in such imminent danger as will not 
admit of delay. 

ARTICLE II. — SECTION 1. 

1. The executive power shall be vested in a President 
of the United States of America. He shall hold his office 
during the term of four years, and, together with the Vice- 
President, chosen for the same term, be elected as follows : 



302 

2. Each State shall appoint, in such manner as the legis- 
lature thereof may direct, a number of electors, equal to the 
whole number of senators and representatives to which the 
State may be entitled in the Congress ; but no senator or 
representative, or person holding any office of trust or profit 
under the United States, shall be appointed an elector. 

3. The electors shall meet in their respective States, and 
vote by ballot for two persons, of whom one at least shall 
not be an inhabitant of the same State with themselves. 
And they shall make a list of all the persons voted for, and 
of the number of votes for each ; which list they shall sign 
and certify, and transmit sealed to the seat of the Govern- 
ment of the United States, directed to the President of the 
Senate. The President of the Senate shall, in the presence 
of the Senate and House of Representatives, open all the 
certificates, and the votes shall then be counted. The per- 
son having the greatest number of votes shall be the Pre- 
sident, if such number be a majority of the whole number 
of electors appointed ; and if there be more than one who 
have such a majority, and have an equal number of votes, 
then the House of Representatives shall immediately 
choose, by ballot, one of them for President; and if no 
person have a majority, then, from the five highest on the 
list, the said House shall, in like manner, choose the Pre- 
sident. But, in choosing the President, the votes shall be 
taken by States, the representation from each State having 
one vote ; a quorum for this purpose shall consist of a 
member or members from two thirds of the States, and a 
majority of all the States shall be necessary to a choice. In 
every case, after the choice of the President, the person 
having the greatest number of votes of the electors, shall 
be the Vice-President. But if there should remain two or 
more who have equal votes, the Senate shall choose from 
them, by ballot, the Vice-President. 



303 

4. The Congress may determine the time of choosing the 
electors, and the day on which they shall give their votes; 
which day shall be the same throughout the United States. 

5. No person, except a natural-born citizen, or a citizen 
of the United States at the time of the adoption of this 
Constitution, shall be eligible to the office of President : 
neither shall any person be eligible to that office who shall 
not have attained to the age of thirty-five years, and been 
fourteen years a resident within the United States. 

6. In case of the removal of the President from office, 
or of his death, resignation, or inability to discharge the 
powers and duties of the said office, the same shall devolve 
on the Vice-President, and the Congress may, by law, pro- 
vide for the case of removal, death, resignation, or inability, 
both of the President and Vice-President, declaring what 
officer shall then act as President, and such officer shall act 
accordingly, until the disability be removed, or a President 
shall be elected. 

7« The President shall, at stated times, receive for his 
services a compensation, which shall neither be increased 
nor diminished during the period for which he shall have 
been elected, and he shall not receive within that period 
any other emolument from the United States, or any of 
them. 

8. Before he enter on the execution of his office, he 
shall take the following oath or affirmation : 

9. " I do solemnly swear (or affirm) that I will faithfully 
execute the office of President of the United States, and 
will to the best of my ability, preserve, protect, and defend 
the Constitution of the United States.'* 

SECTION 2. 

1. The President shall be commander-in-chief of the 
army and navy of the United States, and of the militia of 



304 



the several States, when called into the actual service of 
the United States ; he may require the opinion, in vrriting, 
of the principal officer in each of the executive departments, 
upon any subject relating to the duties of their respective 
offices ', and he shall have power to grant reprieves and 
pardons for offences against the United States, except in 
cases of impeachment. 

2. He shall have power, by and with the advice and con- 
sent of the Senate, to make treaties, provided two thirds of 
the senators present concur : and he shall nominate, and 
by and with the advice and consent of the Senate, shall 
appoint ambassadors, other public ministers and consuls, 
judges of the supreme court, and all other officers of the 
United States, wliose appointments are not herein other- 
wise provided for, and which shall be established by law. 
But the Congress may, by law, vest the appointment of 
such inferior officers as they think proper, in the President 
alone, in the courts of law, or in the heads of departments. 

3. The President shall have power to fill up all vacancies 
that may happen during the recess of the Senate, by grant- 
ing commissions which shall expire at the end of their next 
session. 

SECTION 3. 

1. He shall from time to time, give to the Congress in- 
formation of the state of the Union, and recommend to 
their consideration such measures as he shall judge neces- 
sary and expedient ; he may on extraordinary occasions 
convene both Houses, or either of them, and in case of dis- 
agreement between them, with respect to the time of ad- 
journment, he may adjourn them to such time as he shall 
think proper ; he shall receive ambassadors and other pub- 
lic ministers ; he shall take care that the laws be faithfulljy- 



305 

executed ; and shall commission all the officers of the 
United States. 

SECTION 4. 

1 . The President, Vice-President, and all civil officers of 
the United States, shall be removed from office on im- 
peachment for, and conviction of, treason, bribery, or other 
high crimes and misdemeanors. 

ARTICLE III. SECTION 1. 

1 . The judicial power of the United States shall be vested 
in one supreme court, and in such inferior courts, as the 
Congress may from time to time ordain and establish. 
The judges, both of the supreme and inferior courts, shall 
hold their offices during good behaviour ; and shall at stated 
times receive for their services a compensation, which shall 
not be diminished during their continuance in office. 

SECTION 2. 

1 . The judicial power shall extend to all cases in law and 
equity, arising under this Constitution, the laws of the 
United States, and treaties made, or which shall be made, 
under their authority ; to all cases affecting ambassadors, 
other public ministers and consuls ; to all cases of admi- 
ralty and maritime jurisdiction ; to controversies to which 
the United States shall be a party ; to controversies between 
two or more States -, between a State and citizens of another 
State; between citizens of different States ; between citizen 
of the same State claiming lands under grants of different 
States; and between a State or the citizens thereof, and 
foreign States, citizens or subjects. 

2. In all cases affecting ambassadors, other public mi- 
nisters and consuls, and those i which a State shall be a 

VOL. I. X 



306 

party, the supreme court shall have original jurisdiction. 
In all the other cases before mentioned, the supreme court 
shall have appellate jurisdiction, both as to law and fact, 
with such exceptions, and under such regulations, as the 
Congress shall make. 

3. The trial of all crimes, except in cases of impeach- 
ment, shall be by jury, and such trial shall be held in the 
State where the said crimes shall have been committed ; 
but when not committed within any State, the trial shall 
be at such place or places as the Congress may by law have 
directed. 

SECTION 3. 

1 . Treason against the United States shall consist only 
in levying war against them, or in adhering to their ene- 
mies, giving them aid and comfort. No person shall be 
convicted of treason unless on the testimony of two wit- 
nesses to the same overt act, or on confession in open 
court. 

2. Tlie Congress shall have power to declare the punish- 
ment of treason ; but no attainder of treason shall work 
corruption of blood, or forfeiture, except during the life of 
the person attainted. 

ARTICLE IV. SECTION 1. 

1. Full faith and credit shall be given in each State to 
the public acts, records, and judicial proceedings of every 
other State. And the Congress may, by general laws, pre- 
scribe the manner in which such acts, records, and pro- 
ceedings, shall be proved, and the effect thereof. 



307 



SECTION 2. 



1. The citizens of each State shall be entitled to all pri- 
vileges and immunities of citizens in the several States. 

2. A person charged in any State vrith treason, felony, 
or other crime, who shall flee from justice, and be fomidin 
another State, shall on demand of the executive authority 
of the State from vrhich he fled, be delivered up, to be re- 
moved to the State having jurisdiction of the crime. 

3. No person held to service or labour in one State un- 
der the laws thereof, escaping into another, shall in con- 
sequence of any law or regulation therein, be discharged 
from such service or labour; but shall be delivered up on 
claim of the party to whom such service or labour may be 
due. 

SECTION 3. 

1. New States may be admitted by the Congress into 
this Union ; but no new State shall be formed or erected 
within the jurisdiction of any other State, nor any State 
be formed by the junction of two or more States, or parts 
of States, without the consent of the legislatures of the 
States concerned, as well as of the Congress. 

2. The Congress shall have power to dispose of, and 
make all needful rules and regulations respecting, the ter- 
ritory or other property belonging to the United States ; 
and nothing in this Constitution shall be so construed as 
to prejudice any claims of the United States, or of any 
particular State. 

SECTION 4. 

1. The United States shall guarantee to every State in 
this Union a republican form of Government, and shall 
protect each of them against invasion ;-and, on application 

X 2 



308 

of the legislature^ or of the executive, (when the legislature 
cannot be convened,) against domestic violence. 

ARTICLE V. 

1. The Congress, whenever two thirds of both Houses 
shall deem it necessary, shall propose amendments to this 
Constitution ; or, on the application of the legislatures of 
two thirds of the several States, shall call a convention for 
proposing amendments, which, in either case, shall be valid 
to all intents and purposes, as part of this Constitution, 
when ratified by the legislatures of three fourths of the se- 
veral States, or by conventions in three fourths thereof, as 
the one or the other mode of ratification may be proposed 
by the Congress 3 provided, that no amendment which may 
be made prior to the year one thousand eight hundred and 
eight, shall in any manner affect the first and fourth clauses 
in the ninth section of the first article : and that no State, 
without its consent, shall be deprived of its equal suffrage 
in the Senate. 

ARTICLE VI. 

1. All debts contracted and engagements entered into, 
before the adoption of this Constitution, shall be as valid 
against the United States under this Constitution, as under 
the Confederation. 

2. This Constitution, and the laws of the United States 
which shall be made in pursuance thereof, and all treaties 
made, or which shall be made, under the authority of the 
United States, shall be the supreme law of the land ; and 
the judges in every State shall be bound thereby, anything 
in the Constitution or laws of any State to the contrary 
notwithstanding. 

3. The senators and representatives before mentioned, 
and the members of the several State legislatures, and all 



309 

executive and judicial officers, both of the United States 
and of the several States, shall be bound by oath or affir- 
mation to support this Constitution : but no religious test 
shall ever be required as a qualification to any office or 
public trust under the United States. 

ARTICLE VII. 

1 . The ratification of the conventions of nine States shall 
be sufficient for the establishment of this Constitution be- 
tween the States so ratifying the same. 

Done in Convention, by the unanimous consent of the 
States present, the seventeenth day of September, in 
the year of our Lord one thousand seven hundred and 
eighty-seven, and of the Independence of the United 
States of America, the twelfth. In witness whereof, 
we have hereunto subscribed our names. 

GEORGE WASHINGTON, 

President and Deputy from Virginia. 

NEW HAMPSHIRE, David Bcarly, 

John Langdon, William Paterson, 

Nicholas Gilman. Jonathan Dayton. 

MASSACHUSETTS. PENNSYLVANIA. 

Nathaniel Gorman, Benjamin Franklin, 

Rufus King. Thomas Mafflin, 

Robert Morris, 

CONNECTICUT. 

William Samuel Johnson, ^ _; . ^ 

-r, c^, Thomas Fitzsimons, 

Roger Sherman. 

Jared Ingersoll, 

NEW YORK. James Wilson, 

Alexander Hamilton. Governeur Morris. 

NEW^ JERSY. DELAWARE. 

William Livingston, George Read, 



310 

Gunning Bedford, jun. north Carolina. 

John Dickinson, William Blount, 

Richard Bassett, Richard Dobbs Spaight, 

Jacob Broom. Hugh Williamson. 

MARYLAND. SOUTH CAROLINA. 

James M^Henry, John Rutledge, 

Daniel of St. Tho. Jenifer, ^has. Cotesworth Pinckney, 
Daniel Carrol. Charles Pinckney, 

Pierce Butler. 

VIRGINIA. GEORGIA. 

John Blair, William Few, 

James Madison, jun. Abraham Baldwin. 

Attest, WILLIAM JACKSON, Secretary. 



AMENDMENTS TO THE CONSTITUTION. 

Art. 1. Congress shall make no law respecting an esta- 
blishment of religion or prohibiting the free exercise thereof ^ 
or abridging the freedom of speech or of the press ; or the 
right of the people peaceably to assemble, and to petition 
the Government for a redress of grievances. 

Art. 2. A well regulated militia being necessary to the 
security of a free State, the right of the people to keep and 
bear arms shall not be infringed. 

Art. 3. No soldier shall, in time of peace, be quartered 
in any house without the consent of the owner ; nor in time 
of war, but in a manner prescribed by law. 

Art. 4, The right of the people to be secure in their 
persons, houses, papers, and effects, against unreasonable 
searches and seizures, shall not be violated ; and no war- 
rants shall issue but upon probable cause, supported by 
oath or affirmation, and particularly describing the place 
to be searched, and the persons or things to be seized. 



311 

Art. 5. No person shall be held to answer for a capital 
or otherwise infamous crime^ unless on a presentment or 
indictment of a grand jury^ except in cases arising in the 
land or naval forces, or in the militia, when in actual ser- 
vice, in time of war or public danger ; nor shall any person 
be subject for the same offence to be twice put in jeopardy 
of life or limb ; nor shall be compelled, in any criminal 
case, to be a witness against himself ; nor be deprived of 
life, liberty, or property, without due process of law ; nor 
shall private property be taken for public use, without just 
compensation. 

Art. 6. In all criminal prosecutions the accused shall 
enjoy the right to a speedy and public trial by an impartial 
jury of the State and district wherein the crime shall have 
been committed, which district shall have been previously 
ascertained by law, and to be informed of the nature and 
cause of the accusation ; to be confronted with the wit- 
nesses against him ; to have compulsory process for ob- 
taining witnesses in his favour ; and to have the assistance 
of counsel for his defence. 

Art. 7- In suits at common law, where the value in con- 
troversy shall exceed twenty dollars, the right of trial by 
jury shall be preserved ; and no fact tried by a jury shall 
be otherwise re-examined in any court of the United States, 
than according to the rules of the common law. 

Art. 8. Excessive bail shall not be required, nor exces- 
sive fines imposed, nor cruel and unusual punishments in- 
flicted. 

Art. 9. The enumeration in the Constitution of certain 
rights shall not be construed to deny or disparage others 
retained by the people. 

Art. 10. The powers not delegated to the United States 
by the Constitution, nor prohibited by it to the States, are 
reserved to the States respectively, or to the people. 



312 

Art. 1 1 . The judicial power of the United States shall 
not be construed to extend to any suit in law or equity, 
commenced or prosecuted against one of the United States 
by citizens of another State, or by citizens or subjects of 
any foreign State. 

Art. 12. 1. The electors shall meet in their respective 
States, and vote by ballot for President and Vice-President, 
one of whom, at least, shall not be an inhabitant of the 
same State with themselves; they shall name in their 
ballots the person voted for as President, and in distinct 
ballots the person voted for as Vice-President ; and they 
shall make distinct lists of all persons voted for as President, 
and of all persons voted for as Vice-President, and of the 
number of votes for each, which lists they shall sign and 
certify, and transmit sealed to the seat of the Government 
of the United States, directed to the president of the Senate; 
the president of the Senate shall, in the presence of the Se- 
nate and House of Representatives, open all the certificates, 
and the votes shall then be counted ; the person having 
the greatest number of votes for President, shall be the 
President, if such of the number be a majority of the whole 
number of electors appointed : and if no person have such 
a majority, then from the persons having the highest num- 
bers, not exceeding three, on the list of those voted for as 
President, the House of Representatives shall choose imme- 
diately, by ballot, the President. But, in choosing the 
President, the votes shall be taken by States, the represen- 
tation from each State having one vote ; a quorum for this 
purpose shall consist of a member or members from two 
thirds of the States, and a majority of all the States shall 
be necessary to a choice. And if the House of Representa- 
tives shall not choose a President whenever the right of 
choice shall devolve upon them, before the fourth day of 
March next following, the Vice-President shall act as Pre- 



313 

sident^ as in the case of the death or other constitutional 
disability of the President. 

2. The person having the greatest number of votes as Vice- 
President, shall be the Vice-President, if such number be a 
majority of the whole number of electors appointed ; and 
if no person have a majority, then from the two highest 
numbers on the list, the Senate shall choose the Vice-Presi- 
dent : a quorum for the purpose shall consist of two thirds 
of the whole number of senators, and a majority of the 
whole number shall be necessary to a choice. 

3. But no person constitutionally ineligible to the office 
of President, shall be eligible to that of Vice-President of 
the United States. 



APPENDIX Q. 

Constitution of New York, 



AS AMENDED. 

We, the people of the state of New York, acknowledging 
with gratitude the grace and beneficence of God, in per- 
mitting us to make choice of our form of government, do 
establish this Constitution. 

ARTICLE 1. 

§ 1. The legislative power of this State shall be vested 
in a Senate and an Assembly. 

2. The Senate shall consist of thirty-two members. The 
senators shall be chosen for four years, and shall be free- 
holders. The Assembly shall consist of one hundred and 
twenty- eight members, who shall be annually elected. 

3. A majority of each House shall constitute a quorum 



314 

to do business. Each House shall determine the rules of 
its own proceedings, and be the judge of the qualifications 
of its own members. Each House shall choose its own 
officers, and the Senate shall choose a temporary president, 
when the lieutenant-governor shall not attend as president, 
or shall act as governor. 

4. Each House shall keep ajournai of its proceedings, 
and publish the same, except such parts as may require 
secrecy. The doors of each House shall be kept open, 
except when the public welfare shall require secrecy. 
Neither House shall, without the consent of the other, 
adjourn for more than two days. 

5 . The State shall be divided into eight districts, to be 
called Senate districts, each of which shall choose four 
senators. 

And as soon as the Senate shall meet, after the first 
election to be held in pursuance of this Constitution, they 
shall cause the senators to be divided by lot, into four 
classes, of eight in each, so that every district shall have 
one senator of each class : the classes to be numbered, 
one, two, three, and four. And the seats of the first class 
shall be vacated at the end of the first year ; of the second 
class, at the end of the second year ; of the third class, at 
the end of the third year ; of the fourth class, at the end 
of the fourth year ; in order that one senator be annually 
elected in each Senate district. 

6. An enumeration of the inhabitants of the State shall 
be taken, under the direction of the legislature, in the year 
one thousand eight hundred and twenty-five, and at the end 
of every ten years thereafter ; and the said districts shall 
be so altered by the legislature, at the first session after 
the return of every enumeration, that each Senate district 
shall contain, as nearly as may be, an equal number of in- 
habitants, excluding aliens, paupers, and persons of colour 



315 

not taxed ; and shall remain unaltered until the return of 
another enumeration, and shall at all times consist of con- 
tiguous territory ; and no county shall be divided in the 
formation of a Senate district. 

7. The members of the Assembly shall be chosen by 
counties,, and shall be apportioned among the several coun- 
ties of the State, as nearly as may be, according to the num- 
bers of their respective inhabitants, excluding aliens, pau- 
pers, and persons of colour not taxed. An apportionment 
of members of Assembly shall be made by the legislature 
at its first session after the return of every enumeration ; 
and, when made, shall remain unaltered until another enu- 
meration shall have been taken. But an apportionment 
of members of the Assembly shall be made by the present 
legislature according to the last enumeration, taken under 
the authority of the United States, as nearly as may be. 
Every county heretofore established, and separately or- 
ganized, shall alvrays be entitled to one member of the 
Assembly, and no nevr county shall hereafter be erected, 
unless its population shall entitle it to a member^ 

8. Any bill may originate in either House of the legisla- 
ture ; and all bills passed by one House, may be amended 
by the other. 

9. The members of the legislature shall receive for their 
services a compensation, to be ascertained by law, and paid 
out of the public treasury ; but no increase of the compen- 
sation shall take effect during the year in which it shall 
have been made. And no law shall be passed increasing 
the compensation of the members of the legislature, be- 
j^ond the sum of the three dollars a day. 

10. No member of the legislature shall receive any civil 
appointment from the governor and Senate, or from the 
legislature, during the term for which he shall have been 
elected. 



316 

1 1 . No person being a member of Congress, or holding 
any judicial or military office under the United States, 
shall hold a seat in the legislature. And if any person 
shall, while a member of the legislature, be elected to 
Congress, or appointed to any office, civil or military, un- 
der the United States, his acceptance thereof shall vacate 
his seat. 

12. Every bill which shall have passed the Senate and 
Assembly, shall, before it become a law, be presented to 
the governor : if he approve, he shall sign it, but if not, 
he shall return it with his objections to that House in 
which it shall have originated, who shall enter the ob- 
jections at large on their journal, and proceed to recon- 
sider it : if, after such reconsideration, two thirds of the 
members present shall agree to pass the bill, it shall be 
sent, together with the objections, to the other House, by 
which it shall likewise be reconsidered ; and if approved 
by two thirds of the members present, it shall become a 
law ; but in all such cases, the votes of both Houses shall 
be determined by yeas and nays, and the names of the 
persons voting for and against the bill shall be entered on 
the journals of each House respectively : if any bill shall 
not be returned by the governor within ten days (Sundays 
excepted) after it shall have been presented to him, the 
same shall be a law, in like manner as if he had signed it, 
unless the legislature shall, by their adjournment, prevent 
its return ; in which case it shall not be a law. 

13. All officers holding their offices during good beha- 
viour, may be removed by joint resolution of the two 
Houses of the legislature, if two thirds of all the members 
elected to the Assembly, and a majority of all the members 
elected to the Senate, concur therein. 

14. The political year shall begin on the first day of 
January ; and the legislature shall every jear assemble 



317 

on the first Tuesday in January, unless a different day 
shall be appointed by law. 

15. The next election for governor^ lieutenant-gover- 
nor, senators, and members of Assembly, shall commence 
on the first Monday of November one thousand eight 
hundred and tvi^enty-two 3 and all subsequent elections 
shall be held at such time in the month of October or 
November as the legislature shall by lavr provide. 

16. The governor, lieutenant-governor, senators, and 
members of Assembly, first elected under this Constitution, 
shall enter on the duties of their respective offices on the 
first day of January one thousand eight hundred and 
twenty-three; and the governor, lieutenant-governor, se- 
nators, and members of Assembly, now in office, shall con- 
tinue to hold the same until the first day of January one 
thousand eight hundred and tweny-three, and no longer. 

ARTICLE 2. 

1. Every male citizen of the age of twenty-one years, 
who shall have been an inhabitant of this State one year 
preceding any election, and for the last six months a resi- 
dent of the town or county where he may offer his vote ; 
and shall have, within the year next preceding the election, 
paid a tax to the State or county, assessed upon his real or 
personal property ; or shall by law be exempted from tax- 
ation ; or being armed and equipped according to law, 
shall have performed within that year, military duty in the 
militia of this State ; or who shall be exempted from per- 
forming militia duty in consequence of being a fireman in 
any city, town, or village in this State ; and also every 
male citizen of the age of twenty- one years, who shall have 
been for three years next preceding such elections an in- 
habitant of this State ; and for the last year a resident in 



318 

the town or county where he may offer his vote ; and 
shall have been, within the last year, assessed to labour 
upon the public highways, and shall have performed the 
labour, or paid an equivalent therefor, according to law ; 
shall be entitled to vote in the town or ward where he ac- 
tually resides, and not elsewhere, for all officers that now 
are, or hereafter may be, elective by the people : but no 
man of colour, unless he shall have been for three years a 
citizen of this State, and for one year next preceding any 
election shall be seized and possessed of a freehold estate 
of the value of two hundred and fifty dollars over and above 
all debts and incumbrances charged thereon ; and shall 
have been actually rated, and paid a tax thereon, shall be 
entitled to vote at such election. And no person of colour 
shall be subject to direct taxation, unless he shall be seized 
and possessed of such real estate as aforesaid. 

2. Laws may be passed excluding from the right of suf- 
frage persons who have been, or may be, convicted of in- 
famous crimes. 

3. Laws shall be made for ascertaining, by proper proofs, 
the citizens who shall be entitled to the right of suffrage, 
hereby established. 

4. All elections by the citizens shall be by ballot, ex- 
cept for such town officers as may by law be directed to 
be otherwise chosen. 

ARTICLE 3. 

§ 1. The executive power shall be vested in a governor. 
He shall hold his office for two years ; and a lieutenant- 
governor shall be chosen at the same time, and for the same 
term. 

2. No person, except a native citizen of the United 
States, shall be eligible to the office of governor, nor shall 
any person be eligible to that office who shall not be a free- 



319 

holder, and shall not have attained the age of thirty years, 
and have been five years a resident within the State ; un- 
less he shall have been absent during that time on public 
business of the United States, or of this State. 

3. The governor and lieutenant-governor shall be elected 
at the times and places of choosing members of the legis- 
lature. The persons respectively having the highest num- 
ber of votes for governor and lieutenant-governor, shall be 
elected ; but in case two or more shall have an equal and 
the highest number of votes for governor or for lieutenant- 
governor, the two Houses of the legislature shall, by joint 
ballot, choose one of the said persons, so having an equal 
and the highest number of votes, for governor or lieutenant- 
governor. 

4. The governor shall be general and commander-in- 
chief of all the militia, and admiral of the navy of the State. 
He shall have power to convene the legislature (or the 
Senate only,) on extraordinary occasions. He shall com- 
municate by message to the legislature, at every Session, 
the condition of the State -, and recommend such matters 
to them as he shall judge expedient. He shall transact all 
necessary business with the officers of Government, civil 
and military. He shall expediate all such measures as may 
be resolved upon by the legislature, and shall take care that 
the laws are faithfully executed. He shall, at stated times, 
receive for his services a compensation, which shall neither 
be increased nor diminished during the term for which he 
shall have been elected. 

5. The governor shall have power to grant reprieves and 
pardons, after conviction, for all offences except treason and 
cases of impeachment. Upon convictions for treason, he 
shall have power to suspend the execution of the sentence 
until the case shall be reported to the legislature at its 
next meeting; when the legislature shall either pardon, 



320 

or direct the execution of the criminal, or grant a further 
reprieve. 

6. In case of the impeachment of the governor or his re- 
moval from office, death, resignation, or absence from the 
State, the powers and duties of the office shall devolve upon 
the lieutenant-governor, for the residue of the term, or 
until the governor absent or impeached shall return or be 
acquitted. But when the governor shall, with the consent 
of the legislature, be out of the State in time of war, at 
the head of a military force thereof, he shall still continue 
commander-in-chief of all the military force of the State. 

7. The lieutenant-governor shall be president of the 
Senate, but shall have only a casting vote therein. If 
during a vacancy of the office of governor the lieutenant- 
governor shall be impeached, displaced, resign, die, or be 
absent from the State, the president of the Senate shall 
act as governor until the vacancy shall be filled or the dis- 
ability shall cease. 

ARTICLE 4. 

§ 1 . MiHtia officers shall be chosen, or appointed, as fol- 
lows : — Captains, subalterns, and non-commissioned offi- 
cers, shall be chosen by the written votes of the members 
of their respective companies. Field officers of regiments 
and separate battalions, by the written votes of the com- 
missioned officers of the respective regiments and separate 
battalions. Brigadier-generals, by the field officers of their 
respective brigades. Major-generals, brigadier-generals, 
and commanding officers of regiments or separate battalions, 
shall appoint the staff officers to their respective divisions, 
brigades, regiments, or separate battalions. 

2. The governor shall nominate, and, with the consent 
of the Senate, appoint, all major-generals, brigade inspec- 
tors, and chiefs in the staff departments, except the adju- 



321 

tants-general and commissary-general. The adjutant-ge^ 
neral shall be appointed by the governor. 

3. The legislature shall^ by law, direct the time and 
manner of electing militia officers, and of certifying their 
elections to the governor. 

4. The commissioned officers of the militia shall be com- 
missioned by the governor ; and no commissioned officer 
shall be removed from office, unless by the Senate, on the 
recommendation of the governor, stating the grounds on 
which such removal is recommended, or by the decision of 
a court-martial, pursuant to law. The present officers of 
the militia shall hold their commissions subject to removal, 
as before provided. 

5. In case the mode of election and appointment of mi- 
litia officers hereby directed, shall not be found conducive 
to the improvement of the militia, the legislature may 
abolish the same, and provide by law for their appointment 
and removal, if two thirds of the members present in each 
House shall concur therein. 

6. The secretary of state, comptroller, treasurer, at- 
torney-general, surveyor-general, and commissary-general, 
shall be appointed as follows : The Senate and Assembly 
shall each openly nominate one person for the said offices 
respectively ; after which they shall meet together, and if 
they shall agree in their nominations, the person so nomi- 
nated shall be appointed to the office for which he shall be 
nominated. If they shall disagree, the appointment shall* 
be made by the joint ballot of the senators and members of 
Assembly. The treasurer shall be chosen annually. The 
secretary of state, comptroller, attorney-general, surveyor- 
general, and commissary-general, shall hold their offices 
for three years, unless sooner removed by concurrent re- 
solution of the Senate and Assembly. 

7. The governor shall nominate, by mess age, in writing 

VOL. I. Y 



322 

and, with the consent of the Senate, shall appoint all ju- 
dicial officers, except justices of the peace, who shall be 
appointed in manner following, that is to say : The board 
of supervisors in every county in this State, shall, at such 
times as the legislature may direct, meet together : and 
they, or a majority of them so assembled, shall nominate 
so many persons as shall be equal to the number of justices 
of the peace, to be appointed in the several towns in the 
respective counties. And the judges of the respective 
county courts, or a majority of them, shall also meet and 
nominate a like number of persons : and it shall be the 
duty of the said board of supervisors and judges of county 
courts, to compare such nominations, at such time and 
place as the legislature may direct ; and if, on such com- 
parison, the saids boards of supervisors and judges of county 
courts shall agree in their nominations, in all or in part, 
they shall file a certificate of the nominations in which they 
shall agree in the office of the clerk of the county : and the 
person or persons named in such certificates shall be jus- 
tices of the peace ; and in case of disagreement in whole 
or in part, it shall be the further duty of the said boards of 
supervisors and judges respectively to transmit their said 
nominations, so far as they disagree in the same, to the go- 
vernor, who shall select from the said nominations, and ap- 
point so many justices of the peace as shall be requisite to 
fill the vacancies. Every person appointed a justice of the 
peace shall hold his office for four years, unless removed 
by the county court for causes particularly assigned by the 
judges of the said court. And no justice of the peace shall 
be removed until he shall have notice of the charges made 
against him, and an opportunity of being heard in his de- 
fence. 

8. Sheriffs and clerks of counties, including the register, 
and clerks of the city and county of New York, shall be 



323 

chosen by the electors of the respective counties^ once in 
every three years^ and as often as vacancies shall happen. 
Sheriffs shall hold no other office^ and be ineligible for the 
next three years after the termination of their offices. They 
may be required by law to renew their security from time 
to time, and in default of giving such new security their 
offices shall be deemed vacant. But the county shall never 
be made responsible for the acts of the sheriff. And the 
governor may remove any such sheriff, clerk, or register, 
at any time within the three years for which he shall be 
elected, giving to such sheriff, clerk, or register, a copy of 
the charge against him, and an opportunity of being heard 
in his defence, before any removal shall be made. 

9. The clerks of courts, except those clerks whose ap- 
pointment is provided for in the preceding section, shall 
be appointed by the courts of which they respectively are 
clerks ; and district attorneys, by the county courts. Clerks 
of courts and district attorneys shall hold their offices for 
three years, unless sooner removed by the courts appoint- 
ing them. 

10. The mayors of all the cities in this State shall be 
appointed annually by the common councils of their re- 
spective cities. 

11 . So many coroners as the legislature may direct, not 
exceeding four in each county, shall be elected in the same 
manner as sheriffs, and shall hold their offices for the same 
term, and be removable in like manner. 

12. The governor shall nominate, and, with the consent 
of the Senate, appoint masters and examiners in chancery ; 
who shall hold their offices for three years, unless sooner 
removed by the Senate on the recommendation of the go- 
vernor. The registers and assistant registers shall be ap- 
pointed by the chancellor, and hold their offices during his 
pleasure. 

Y 2 



324 

13. The clerk of the court of oyer and terminer, and 
general sessions of the peace, in and for the city and county 
of New York, shall be appointed by the court of general 
sessions of the peace in said city, and hold his office during 
the pleasure of said court; and such clerks and other 
officers of courts, whose appointment is not herein pro- 
vided for, shall be appointed be the several courts ; or by 
the governor, with the consent of the Senate, as may be 
directed by law. 

14. The special justices and the assistant justices, and 
their clerks, in the city of New York, shall be appointed 
by the common council of the said city ; and shall hold 
their offices for the same term that the justices of the 
peace, in the other counties of this State, hold their offices, 
and shall be removable in like manner. 

15. All officers heretofore elective by the people shall 
continue to be elected -, and all other officers whose ap- 
pointment is not provided for by this Constitution, and all 
officers whose offices may be hereafter created by law, 
shall be elected by the people, or appointed, as may by law 
be directed. 

16. Where the duration of any office is not prescribed 
by this Constitution, it may be declared by law; and if not 
so declared, such office shall be held during the pleasure of 
the authority making the appointment. 



ARTICLE 5. 

§ 1 . The court for the trial of impeachments, and the 
correction of errors, shall consist of the President of the 
Senate, the senators, the chancellors, and the justices of 
the supreme court, or the major part of them: but when 
an impeachment shall be prosecuted against the chancel- 
lor, or any justice of the supreme court, the person so im- 



325 

peached shall be suspended from exercising his office until 
his acquittal ; and when an appeal from a decree in chan- 
cery shall be heard, the chancellor shall inform the court 
of the reasons for his decree, but shall have no voice in 
the final sentence 5 and when a writ of error shall be 
brought, on a judgement of the supreme court, the justices 
of that court shall assign the reasons for their judgement, 
but shall not have a voice for its affirmance or reversal. 

2. The Assembly shall have the power of impeaching 
all civil officers of this State for male and corrupt conduct 
in office, and high crimes and misdemeanors : but a majo- 
rity of all the members elected shall concur in an impeach- 
ment. Before the trial of an impeachment, the members 
of the court shall take an oath or affirmation, truly and 
impartially to try and determine the charge in question 
according to evidence : and no person shall be convicted 
without the concurrence of two thirds of the members pre- 
sent. Judgement, in cases of impeachment, shall not ex- 
tend further than the removal from office, and disqualifi- 
cation to hold and enjoy any office of honour, trust, or 
profit under this State ; but the party convicted shall be 
liable to indictment and punishment, according to law. 

3. The chancellor, and justices of the supreme court, 
shall hold their offices during good behaviour, or until they 
shall attain the age of sixty years. 

4. The supreme court shall consist of a chief justice and 
two justices, any of whom may hold the court. 

5 . The State shall be divided, by law, into a convenient 
number of circuits, not less than four, nor exceeding eight, 
subject to alteration, by the legislature, from time to time, 
as the public good may require ; for each of which a cir- 
cuit judge shall be appointed in the same manner, and 
hold his office by the same tenure, as the justices of the 
supreme court ; and who shall possess the powers of a 



326 

justice of the supreme court at chambers, and in the trial 
of issues joined in the supreme court, and in courts of 
oyer and terminer and jail delivery. And such equity 
powers may be vested in the said circuit judges, or in the 
county courts, or in such other subordinate courts as the 
legislature may by law direct, subject to the appellate ju- 
risdiction of the chancellor. 

6. Judges of the county courts, and recorders of cities, 
shall hold their office for five years, but may be removed 
by the Senate, on the recommendation of the governor, 
for causes to be stated in such recommendation. 

7. Neither the chancellor, nor justices of the supreme 
court, nor any circuit judge, shall hold any other office or 
public trust. All votes for any elective office, given by 
the legislature or the people, for the chancellor, or a jus- 
tice of the supreme court, or circuit judge, during his con- 
tinuance in his judicial office, shall be void. 

ARTICLE 6. 

§ 1 . Members of the legislature, and all officers, execu- 
tive and judicial, except such inferior officers as may by 
law be exempted, shall, before they enter on the duties of 
their respective offices, take and subscribe the following 
oath or affirmation : 

I do solemnly swear, (or affirm, as the case may be,) 
that I will support the Constitution of the United States, 
and the Constitution of the State of New York, and that 

I will faithfully discharge the duties of the office of 

according to the best of my ability. 

And no other oath, declaration, or test, shall be required 
as a qualification for any office or public trust. 

ARTICLE 7- 

§ 1. No member of this State shall be disfranchised. 



327 

or deprived of any of the rights or privileges secured to 
any citizen thereof, unless by the law of the land or the 
judgement of his peers. 

2. The trial by jury, in all cases in which it has been 
heretofore used, shall remain inviolate for ever ; and no 
new court shall be instituted, but such as shall proceed 
according to the course of the common law ; except such 
courts of equity as the legislature is herein authorized to 
establish. 

3. The free exercise and enjoyment of religious profes- 
sion and worship, without discrimination or preference, 
shall for ever be allowed in this State to all mankind ; 
but the liberty of conscience hereby secured shall not be 
so construed as to excuse acts of licentiousness, or justify 
practices inconsistent with the peace or safety of this 
State. 

4. And whereas the ministers of the Gospel are, by their 
profession, dedicated to the service of God and the care of 
souls, and ought not to be diverted from the great duties 
of their functions : therefore no minister of the Gospel, 
or priest of any denomination whatsoever, shall at any 
time hereafter, under any pretence or description what- 
ever, be eligible to, or capable of holding any civil or mi- 
litary office or place within this State. 

5. The militia of this State shall, at all times hereafter, 
be armed and disciplined and in readiness for service : 
but all such inhabitants of this State, of any religious de- 
nomination whatever, as from scruples of conscience may 
be averse to bearing arms, shall be excused therefrom by 
paying to the State an equivalent in money ; and the legis- 
lature shall provide by law for the collection of such equi- 
valent, to be estimated according to the expense in time 
and money of an ordinary ablebodied militia-man. 

6. The privilege of the writ of habeas corpus shall not 



328 

be suspended, unless when, in cases of rebellion or inva- 
sion, the public safety may require its suspension. 

7. No person shall be held to answer for a capital or 
other infamous crime, [except in cases of impeachment, 
and in cases of the militia when in actual service, and the 
land and naval forces in time of war, or which this State 
may keep, with the consent of the Congress, in time of 
peace, and in cases of petit larceny, under the regulation 
of the legislature,] unless on presentment, or indictment 
of a grand jury ; and in every trial on impeachment or in- 
dictment the party accused shall be allowed counsel as in 
civil actions. No person shall be subject for the same 
offence to be twice put in jeopardy of life or limb ; nor 
shall he be compelled, in any criminal case, to be a witness 
against himself; nor be deprived of life, liberty, or pro- 
perty, without due process of law : nor shall private pro- 
perty be taken for public use, without just compensation. 

8. Every citizen may freely speak, write, and publish 
his sentiments on all subjects, being responsible for the 
abuse of that right ; and no law shall be passed to restrain 
or abridge the liberty of speech or of the press. In all 
prosecutions, or indictments for libels, the truth may be 
given in evidence to the jury; and if it shall appear to the 
jury that the matter charged as libellous is true, and was 
published with good motives and for justifiable ends, the 
party shall be acquitted ; and the jury shall have the right 
to determine the law and the fact. 

9. The assent of two thirds of the members elected to 
each branch of the legislature, shall be requisite to every 
bill appropriating the public moneys or property, for local 
or private purposes, or creating, continuing, altering, 01 
renewing, any body politic or corporate. 

10. The proceeds of all lands belonging to this State^ 
except such parts thereof as may be reserved or appro- 



329 

priatecl to public use^ or ceded to the United States, which 
shall hereafter be sold or disposed of, together with the 
fund denominated the common school fund, shall be and 
remain a perpetual fund, the interest of which shall be in- 
violably appropriated and applied to the support of com- 
mon schools throughout this State. Rates of toll, not less 
than those agreed to by the canal commissioners, and set 
forth in their report to the legislature of the twelfth of 
March one thousand eight hundred and twenty-one, shall 
be imposed on, and collected from, all parts of the navi- 
gable communication between the great western and nor- 
thern lakes and the Atlantic Ocean, which now are, or 
hereafter shall be, made and completed : and the said 
tolls, together with the duties on the manufacture of all 
salt, as established by the act of the fifteenth of April one 
thousand eight hundred and seventeen ; and the duties on 
goods sold at auction, excepting therefrom the sum of 
thirty-three thousand five hundred dollars otherwise ap- 
propriated by the said act ; and the amount of the revenue, 
established by the act of the legislature of the thirtieth of 
March one thousand eight hundred and twenty, in lieu of 
the tax upon steam-boat passengers ; shall be and remain 
inviolably appropriated and applied to the completion of 
such navigable communications, and to the payment of 
the interest, and reimbursement of the capital, of the mo- 
ney already borrowed, or w^hich hereafter shall be bor- 
rowed, to make and complete the same. And neither the 
rates of toll on the said navigable communications, nor the 
duties on the manufacture of salt aforesaid, nor the duties on 
goods sold at auction, as established by the act of the fifteenth 
of April one thousand eight hundred and seventeen ; nor 
the amount of the revenue established by the act of March 
the thirtieth one thousand eight hundred and twenty, in 
lieu of the tax upon steam-boat passengers j shall be re- 



330 

duced or diverted, at any time, before the full and complete 
payment of the principal and interest of the money bor- 
rowed, or to be borrowed, as aforesaid. And the legisla- 
ture shall never sell or dispose of the salt springs belong- 
ing to this State, nor the lands contiguous thereto, which 
may be necessary or convenient for their use, nor the said 
navigable communications or any part or section thereof, 
but the same shall be and remain the property of this 
State. 

11. No lottery shall hereafter be authorized in this 
State ; and the legislature shall pass laws to prevent the 
sale of all lottery tickets within this state, except in lot- 
teries already provided for by law. 

12. No purchase or contract for the sale of lands in this 
State, made since the fourteenth day of October one thou- 
sand seven hundred and seventy-five, or which may here- 
after be made, of or with the Indians in this State, shall 
be valid, unless under the authority and with the consent 
of the legislature. 

13. Such parts of the common law, and of the acts of 
the legislature of the colony of New York, as together did 
form the law of the said colony on the nineteenth day of 
April one thousand seven hundred and seventy-five, and 
the resolutions of the Congress of the said colony, and of 
the convention of the State of New York, in force on the 
twentieth day of April one thousand seven hundred and 
seventy-seven, which have not since expired, or been re- 
pealed, or altered ; and such acts of the legislature of 
this State as are now in force, shall be and continue the 
law of this State, subject to such alterations as the legis- 
lature shall make concerning the same. But all such 
parts of the common law, and such of the said acts, or 
parts thereof, as are repugnant to this Constitution, are 
hereby abrogated. 



331 

14. All grants of land within the State, made by the 
King of Great Britain, or persons acting under his autho- 
rity, after the fourteenth day of October one thousand 
seven hundred and seventy-five, shall be null and void ; but 
nothing contained in this Constitution shall affect any 
grants of land within this State, made by the authority of 
the said King or his predecessors, or shall annul any char- 
ters to bodies politic and corporate, by him or them made 
before that day ; or shall affect any such grants or charters 
since made by this State, or by persons acting under its 
authority ; or shall impair the obligations of any debts 
contracted by the State, or individuals, or bodies corpo- 
rate, or any other rights of property, or any suits, actions, 
rights of action, or other proceedings, in courts of justice. 

ARTICLE 8. 

§ 1. Any amendment or amendments to this Consti- 
tution may be proposed in the Senate or Assembly ; and if 
the same shall be agreed to by a majority of the members 
elected to each of the two Houses, such proposed amend- 
ment or amendments shall be entered on their journals, 
with the yeas and nays taken thereon, and referred to the 
legislature then next to be chosen ; and shall be published, 
for three months previous to the time of making such 
choice ; and if, in the legislature next chosen as aforesaid, 
such proposed amendment or amendments shall be agreed 
to by two thirds of all the members elected to each House, 
then it shall be the duty of the legislature to submit such 
proposed amendment or amendments to the people, in 
such manner and at such time as the legislature shall 
prescribe ; and if the people shall approve and ratify such 
amendment or amendments by a majority of the electors 
qualified to vote for members of the legislature voting tliere- 



332 

on, such amendment or amendments shall become part of 
the Constitution. 



ARTICLE 9. 

§ 1. This Constitution shall be in force fi'om the last 
day of December in the year one thousand eight hundred 
and twenty- two. But all those parts of the same which 
relate to the right of suffrage^ the division of the State 
into Senate districts^ the number of members of the Assem- 
bly to be elected in pursuance of this Constitution, the 
appointment of members of Assembly, the elections hereby 
directed to commence on the first Monday of November 
in the year one thousand eight hundred and twenty-two, 
the continuance of the members of the present legislature 
in office until the first day of January in the year one 
thousand eight hundred and twenty-three, and the prohi- 
bition against authorizing lotteries, the prohibition against 
appropriating the public moneys or property for local or 
private purposes, or creating, continuing, altering, or re- 
newing any body politic or corporate without the assent 
of two thirds of the members elected to each branch of 
the legislature, shall be in force and take effect from the 
last day of February next. The members of the present 
legislature shall, on the first Monday of March next, take 
and subscribe an oath or affirmation to support the Con- 
stitution, so far as the same shall then be in force. She- 
riffs, clerks of counties, and coroners, shall be elected at 
the election hereby directed to commence on the first Mon- 
day of November in the year one thousand eight hundred 
and twenty-two ; but they shall not enter on the duties of 
their offices before the first day of January then next fol- 
lowing. The commissions of all persons holding civil 
offices on the last day of December one thousand eight 



333 

hundred and twenty-two^ shall expire on that day 3 but the 
officers then in commission may respectively continue to 
hold their said offices until new appointments or elections 
shall take place under this Constitution. 

2. The existing laws, relative to the manner of notify- 
ing, holding, and conducting elections, making returns, 
and canvassing votes, shall be in force and observed, in 
respect of the elections hereby directed to commence on 
the first Monday of November in the year one thousand 
eight hundred and twenty-two, so far as the same are ap- 
plicable. And the present legislature shall pass such other 
and further laws as may be requisite for the execution of 
the provisions of this Constitution in respect to elections. 
Done in Convention, at the Capitol, in the city of Al- 
bany, the tenth day of November in the year one 
thousand eight hundred and twenty-one, and of the 
Independence of the United States of America, the 
forty- sixth. 
In witness whereof, we have hereunto subscribed our 
names. 

DANIEL D. TOMPKINS, 
President* 

John F. Bacon, 1 r> . 

^ ^ ^ > Secretaries. 

Samuel S. Gardiner, J 



END OF THE FIRST VOLUME 



PRINTED BY RICHARD TAYLOR, 
RED LION COURT, FLEET STREET. 



Lately Published, 

In 1 vol. 8vo, price \2s. 

ON THE 

PENITENTIARY SYSTEM IN THE UNITED STATES, 

AND ITS APPLICATION IN FRANCE. 

WITH AN APPENDIX ON PENAL COLONIES, 
AND STATISTICAL NOTES. 

By G. DE Beaumont and A. de Tocqueville ; 

With Notes and Additions 
By Francis Lieber. 







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